Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions: (a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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. (c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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. (d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative. (e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters. (f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus. (g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6. (h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus. (i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package. (j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries. (k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market. (m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement. (o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters. (p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 3 contracts
Samples: Underwriting Agreement (Cascadian Therapeutics, Inc.), Underwriting Agreement (Oncothyreon Inc.), Underwriting Agreement (Oncothyreon Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunderto purchase and pay for the Firm Shares as provided herein on the First Closing Date and, and with respect to the closing of Option Shares, the sale of the StockOption Closing Date, are shall be subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties on the part of the Company contained hereinset forth in Section 1 hereof as of the date hereof and as of the First Closing Date as though then made and, with respect to the Option Shares, as of the Option Closing Date as though then made, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the timely performance by the Company of its their respective covenants and obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements Statement shall have become effective under prior to the Securities Actexecution of this Agreement, and or at such later date as shall be consented to in writing by the Underwriters; no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledgeKnowledge of the Company or any Underwriter, threatened by the Commission, and all requests ; any request of the Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or Statement, any Preliminary Prospectus, any Pricing Prospectus, the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeUnderwriters’ Counsel; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements; and no amendment to the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, or the Prospectus to which the Underwriters or Underwriters’ Counsel shall have reasonably objected, after having received reasonable notice of this Agreement or a proposal to file the same, shall have been filed; and NASDAQ shall not have required a vote of stockholders of the Company in connection with the consummation of the transactions contemplated herebyby this Agreement.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of other legal matters in connection with this Agreement, the Stockform of Registration Statement, the Registration Statementsany Preliminary Prospectus, the General Disclosure Packageany Pricing Prospectus, each Issuer Free Writing Prospectus and the Prospectus and the transactions contemplated hereby registration, authorization, issue, sale and delivery of the Shares, shall be have been reasonably satisfactory in all material respects to counsel for the Underwriters’ Counsel, and the Company such counsel shall have been furnished to with such counsel all documents papers and information that as they may reasonably request have requested to enable them to pass upon such mattersthe matters referred to in this Section 7.
(c) Subsequent to the execution and delivery of this Agreement and prior to the First Closing Date, and on the Option Closing Date, as the case may be, 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, taken as a whole, from that set forth in the Pricing Disclosure Package that, in the sole judgment of Xxxxxxxx Curhan Ford & Co., is material and adverse and that makes it, in the sole judgment of Xxxxxxxx Curhan Ford & Co., impracticable or inadvisable to market the Shares on the terms and in the manner contemplated in the Pricing Disclosure Package.
(d) Fenwick & West LLP, counsel for At the Company, shall have furnished to First Closing Date and on the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Option Closing Date, in form and substance reasonably satisfactory to as the Representative.
(e) The Representative case may be, the Underwriters shall have received from Xxxxxxx Procter LLP, counsel for the UnderwritersCompany (“Company Counsel”), a signed opinion dated as of such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect reasonably satisfactory to Underwriters’ Counsel, in the form and substance of Exhibit B annexed hereto, including a signed negative assurance statement dated as of such matters Closing Date, reasonably satisfactory to Underwriters’ Counsel, in the form and substance reflected in Exhibit B.
(e) At the First Closing Date, and on the Option Closing Date, as the case may be, the Underwriters may reasonably require, and the Company shall have furnished received from Underwriters’ Counsel a signed opinion dated as of such Closing Date in a form and substance reasonably satisfactory to such counsel such documents as they request for enabling them to pass upon such mattersthe Underwriters.
(f) At the time The Underwriters shall have received, on each of the execution of this Agreementdate hereof and the Closing Date, a letter dated the Representative shall have received from Ernst & Young LLP a letterdate hereof or the Closing Date, addressed to as the Underwriters, executed and dated such datecase may be, in form and substance satisfactory to the Representative (i) confirming that they are an Underwriters, from Odenberg Ullakko Muranishi & Co. LLP, independent registered accounting firm with respect to the Company within the meaning of the Securities Act public accountants, containing statements and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 StatementsStatement, the General Disclosure Package any Preliminary Prospectus, any Pricing Prospectus, and the Prospectus; provided, however, that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than two business days before the Closing Date.
(g) On The Underwriters shall have received, on each of the effective date of any post-effective amendment to any Registration Statement hereof and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the date hereof or the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the ProspectusDate, as the case may be, as of a date not more than three (3) business days prior in form and substance satisfactory to the date of the bring-down letter)Underwriters, the conclusions from Ernst & Young LLP, independent public accountants, containing statements and findings of such firm, information 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, any Preliminary Prospectus, any Pricing Prospectus, and other matters covered by its the Prospectus; provided that the letter delivered to on the Representative concurrently with Closing Date shall use a “cut-off date” not earlier than two business days before the execution of this Agreement pursuant to paragraph (f) of this Section 6Closing Date.
(h) The Company Underwriters shall have furnished to received on the Representative First Closing Date and on the Option Closing Date, as the case may be, a certificatecertificate of the Company, dated the First Closing Date or the Option Closing Date, of its as the case may be, signed by the Chief Executive Officer and its Chief Financial Officer stating that of the Company to the effect that, and Xxxxxxxx Curhan Ford & Co. shall be satisfied that:
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the First Closing Date or the Option Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the First Closing Date or the Option Closing Date, as the case may be;
(ii) When the Registration Statement became effective and at all times subsequent thereto up to the delivery of such officers have carefully examined certificate, the Registration Statement, the General Disclosure Package, any Permitted Free Writing Pricing Prospectus and the Prospectus andProspectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in their opinionall material respects conformed to the requirements of the Act and the applicable Rules and Regulations thereunder, the Registration Statements Statement, any Preliminary Prospectus, any Pricing Prospectus, and each amendment the Prospectus, and any amendments or supplements thereto, at the Applicable Time, as of the date of this Agreement did not and as of the Closing Date did does not include any untrue statement of a material fact and did not or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading; and, (ii) since the effective date of the Initial Registration Statement, there has occurred no event has occurred which should have been required to be set forth in a supplement an amended or amendment to the Registration Statements, the General Disclosure Package supplemented Prospectus or the Issuer Free Writing Prospectus that which has not been so set forth therein, forth; and
(iii) Subsequent to their knowledge, the respective dates as of which information is given in the Closing DateRegistration Statement, the representations and warranties of the Company in this Agreement are true and correct any Preliminary Prospectus, any Pricing Prospectus, 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 the Closing DateProspectus, and (iv) there has not beenbeen or occurred, subsequent as the case may be: (A) any Material Adverse Effect; (B) any transaction that is material to the date of the most recent audited financial statements included or incorporated by reference Company and its Subsidiaries considered as a whole, except transactions entered into in the General Disclosure Packageordinary course of business; (C) any obligation, direct or contingent, that is material to the Company and its Subsidiaries considered as a whole, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business; (D) any material adverse change in the financial position capital stock or results of operations outstanding indebtedness of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a Subsidiaries that is material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of to the Company and its subsidiaries taken Subsidiaries considered as a whole; (E) any dividend or distribution of any kind declared, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package paid or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in made on the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, Subsidiaries; or (F) any change, loss or any development involving a prospective change, in damage (whether or affecting not insured) to the business, general affairs, management, financial position, stockholders’ equity or results of operations property of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) Subsidiaries which has been sustained or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Packagewill have been sustained which has a Material Adverse Effect.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with obtained and delivered to the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreementsUnderwriters an agreement, substantially in the form of Exhibit A attached hereto, from each executive officer and director of the persons and entities listed in Exhibit B to this AgreementCompany.
(oj) The Shares shall be listed on The NASDAQ Capital Market, subject only to official notice of issuance.
(k) The Company shall have furnished complied with the provisions of this Agreement with respect to the Underwriters a Secretary’s Certificate furnishing of the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersProspectuses.
(pl) On or before each of the First Closing Date and the Option Closing Date, as the case may be, the Underwriters and Underwriters’ Counsel shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. If any condition specified in this Section 7 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Underwriters by written notice to the Company at any time on or prior to the First Closing Date and, with respect to the Option Shares, at any time prior to the Option Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement which termination shall be deemed without liability on the part of any party to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel any other party, except for the Underwritersexpenses described in Section 11 of this Agreement.
Appears in 2 contracts
Samples: Underwriting Agreement (Neurobiological Technologies Inc /Ca/), Underwriting Agreement (Neurobiological Technologies Inc /Ca/)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunderto purchase and pay for the Firm Shares as provided herein on the First Closing Date and, and with respect to the closing of Option Shares, the sale of the StockOption Closing Date, are shall be subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties on the part of the Company contained hereinset forth in Section 1 hereof as of the date hereof and as of the First Closing Date as though then made and, with respect to the Option Shares, as of the Option Closing Date as though then made, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the timely performance by the Company of its covenants and obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements Statement shall have become effective under prior to the Securities Actexecution of this Agreement, and or at such later date as shall be consented to in writing by the Underwriters; no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledgeKnowledge of the Company or any Underwriter, threatened by the Commission, and all requests ; any request of the Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or Statement, any Preliminary Prospectus, any Pricing Prospectus, the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeUnderwriters’ Counsel; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms of this Agreement and arrangements; and no amendment to the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, or the transactions contemplated herebyProspectus to which the Underwriters or Underwriters’ Counsel shall have reasonably objected, after having received reasonable notice of a proposal to file the same, shall have been filed.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of other legal matters in connection with this Agreement, the Stockform of Registration Statement, the Registration Statementsany Preliminary Prospectus, the General Disclosure Packageany Pricing Prospectus, each Issuer Free Writing Prospectus and the Prospectus and the transactions contemplated hereby registration, authorization, issue, sale and delivery of the Shares, shall be have been reasonably satisfactory in all material respects to counsel for the Underwriters’ Counsel, and the Company such counsel shall have been furnished to with such counsel all documents papers and information that as they may reasonably request have requested to enable them to pass upon such mattersthe matters referred to in this Section 7.
(c) Subsequent to the execution and delivery of this Agreement and prior to the First Closing Date, and on the Option Closing Date, as the case may be, 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, taken as a whole, from that set forth in the Pricing Disclosure Package that, in the judgment of either of the Representatives, could reasonably be expected to result in a Material Adverse Effect and that makes it, in the reasonable judgment of either of the Representatives, impracticable or inadvisable to market the Shares on the terms and in the manner contemplated in the Pricing Disclosure Package.
(d) Fenwick At the First Closing Date and on the Option Closing Date, as the case may be, the Underwriters shall have received from Johnson, Pope, Xxxxx, Xxxxxx & West LLPXxxxx, LLP counsel for the CompanyCompany (“Company Counsel”), shall have furnished to the Representative a signed opinion dated as of such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, reasonably satisfactory to Underwriters’ Counsel, in the form and substance of Exhibit B annexed hereto, including a signed negative assurance statement dated as of such Closing Date, reasonably satisfactory to Underwriters’ Counsel, in the form and substance reflected in Exhibit B. Such opinion shall include a legal opinion regarding the sale of the Direct Shares, including compliance with applicable securities laws, provided that such legal opinion may be a “pass-through” opinion, reasonably satisfactory to Underwriters’ Counsel, provided to Johnson, Pope, Xxxxx, Xxxxxx & Xxxxx, LLP.
(e) At the First Closing Date, and on the Option Closing Date, as the case may be, the Underwriters shall have received from Underwriters’ Counsel a signed opinion dated as of such Closing Date in a form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time The Underwriters shall have received, on each of the execution of this Agreementdate hereof and the Closing Date, a letter dated the Representative shall have received from Ernst & Young LLP a letterdate hereof or the Closing Date, addressed to as the Underwriters, executed and dated such datecase may be, in form and substance satisfactory to the Representative (i) confirming that they are an Underwriters, from Xxxx & Company, P.A., independent registered accounting firm with respect to the Company within the meaning of the Securities Act public accountants, containing statements and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 StatementsStatement, the General Disclosure Package any Preliminary Prospectus, any Pricing Prospectus, and the Prospectus; provided, however, that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days before the Closing Date.
(g) On The Underwriters shall have received on the effective date of any post-effective amendment to any Registration Statement First Closing Date and on the Option Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date certificate of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificateCompany, dated the First Closing Date or the Option Closing Date, of its as the case may be, signed by the Chief Executive Officer and its Chief Financial Officer stating that of the Company, respectively, to the effect that, and the Representatives shall be satisfied that:
(i) The representations and warranties of the Company, respectively, in this Agreement are true and correct, as if made on and as of the First Closing Date or the Option Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions in this Agreement on its part to be performed or satisfied at or prior to the First Closing Date or the Option Closing Date, as the case may be;
(ii) When the Registration Statement became effective and at all times subsequent thereto up to the delivery of such officers have carefully examined certificate, the Registration Statement, the General Disclosure Package, any Permitted Free Writing Pricing Prospectus and the Prospectus andProspectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in their opinionall material respects conformed to the requirements of the Act and the applicable Rules and Regulations thereunder, the Registration Statements Statement, any Preliminary Prospectus, any Pricing Prospectus, and each amendment the Prospectus, and any amendments or supplements thereto, at the Applicable Time, as of the date of this Agreement did not and as of the Closing Date did does not include any untrue statement of a material fact and did not or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in under which they were mademade (except with respect to the Registration Statement), not misleading; and, (ii) since the effective date of the Initial Registration Statement, there has occurred no event has occurred which should have been required to be set forth in a supplement an amended or amendment to the Registration Statements, the General Disclosure Package or the supplemented Prospectus that which has not been so set forth therein, forth; and
(iii) Subsequent to their knowledge, the respective dates as of which information is given in the Closing DateRegistration Statement, the representations and warranties of the Company in this Agreement are true and correct any Preliminary Prospectus, any Pricing Prospectus, 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 the Closing DateProspectus, and (iv) there has not beenbeen or occurred, subsequent as the case may be: (A) any Material Adverse Effect; (B) any transaction that is material to the date of the most recent audited financial statements included or incorporated by reference Company and its Subsidiaries considered as a whole, except transactions entered into in the General Disclosure Packageordinary course of business; (C) any obligation, direct or contingent, that is material to the Company and its Subsidiaries considered as a whole, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business; (D) any material adverse change in the financial position capital stock or results of operations increase in outstanding indebtedness of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a Subsidiaries that is material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of to the Company and its subsidiaries taken Subsidiaries considered as a whole; (E) any dividend or distribution of any kind declared, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package paid or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in made on the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, Subsidiaries; or (F) any change, loss or any development involving a prospective change, in damage (whether or affecting not insured) to the business, general affairs, management, financial position, stockholders’ equity or results of operations property of the Company or any of its subsidiariesSubsidiaries which has been sustained or will have been sustained which has a Material Adverse Effect.
(h) The Company shall have obtained and delivered to the Underwriters an agreement, otherwise than as set forth substantially in the General Disclosure Packageform of Exhibit A attached hereto, from each officer and director of the effect Company and each owner of which, the Company’s outstanding stock listed on Schedule C hereto. All of the certificates representing the Shares shall have been tendered for delivery in any such case described in clause accordance with the terms and provisions of this Agreement.
(i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock The Shares shall be listed on the terms and in the manner contemplated in the General Disclosure PackageNasdaq Capital Market, subject only to official notice of issuance.
(j) No action The Company shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent complied with the issuance or sale provisions of this Agreement with respect to the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations furnishing of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesProspectuses.
(k) Subsequent On or before each of the First Closing Date and the Option Closing Date, as the case may be, the Underwriters and Underwriters’ Counsel shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the execution issuance and delivery sale of this Agreement there shall not have occurred the Shares as contemplated herein, or in order to evidence the accuracy of any of the following: (i) trading in securities generally on the NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilitiesrepresentations and warranties, or the subject satisfaction of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment any of the Representativeconditions or agreements, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectusherein contained.
(l) The Company shall have filed a Notification: Listing of Additional sold all the Direct Shares to investors with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on funds being held in escrow pending this closing. If any condition specified in this Section 7 is not satisfied when and as of required to be satisfied, this Agreement may be terminated by the Closing Date satisfactory evidence of the good standing of Underwriters by written notice to the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or at any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On time on or prior to the First Closing Date and, with respect to the Option Shares, at any time prior to the Option Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement which termination shall be deemed without liability on the part of any party to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel any other party, except for the Underwritersexpenses described in Section 11 of this Agreement.
Appears in 2 contracts
Samples: Underwriting and Advisory Agreement (CUI Global, Inc.), Underwriting Agreement (CUI Global, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the such Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Warrants, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, Xxxxxx Xxxxxxxx LLP shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each as counsel to the Company, addressed to the Underwriters and dated the such Closing Date, in form and substance reasonably satisfactory to the Representativesubstance, as set forth on Exhibit C hereto.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst Deloitte & Young Touche LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the such Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst Deloitte & Young Touche LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the such Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the such Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been been, but has not been, set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth thereinProspectus, (iii) to the best of their knowledgeknowledge after reasonable investigation, as of the such Closing Date, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of and its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company and nor any of its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of and its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the reasonable judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock and Warrants on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock and Warrants or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock and Warrants or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(k) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company’s corporate credit rating or the rating accorded the Company’s debt securities 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 (other than an announcement with positive implications of a possible upgrading), the Company’s corporate credit rating or the rating of any of the Company’s debt securities.
(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 NASDAQ Global New York Stock Exchange, Nasdaq Capital Market or the NYSE Amex 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the reasonable judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock and Warrants on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lm) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market[Intentionally Omitted].
(mn) The Representative Cowen shall have received on and as of the or prior to such Closing Date satisfactory evidence of the good standing of the Company and its subsidiaries in the State their respective jurisdictions of Delaware organization and existence their good standing as a foreign corporation entities in the State of Washingtonsuch other jurisdictions as Cowen may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictionsjurisdictions dated within five business days of such Closing Date.
(no) The Representative Cowen shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(op) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pq) On or prior to the such Closing Date, the Company shall have furnished to the Representative Cowen such further certificates and documents as the Representative Cowen 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Polymedix, Inc), Underwriting Agreement (Polymedix, Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time date hereof and on the Closing Date (as if made at the Closing Date), of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Registration Statements Prospectus shall have become effective under been filed with the Securities ActCommission in a timely fashion in accordance with Section 4(a) hereof; all filings (including, without limitation, the Final Term Sheet) required by Rule 424(b) or Rule 433 of the Rules and Regulations shall have been made within the time periods prescribed by such Rules, and no such filings will have been made by the Company without the consent of the Representatives (such consent not to be unreasonably withheld or delayed); no stop order suspending the effectiveness of any the Registration Statement or any part thereofamendment or supplement thereto, preventing or suspending the use of any Base Preliminary Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification of the Notes for offering or sale in any part thereof jurisdiction shall have been issued and issued; no proceedings for that purpose or pursuant to Section 8A under the Securities Act issuance of any such order shall have been initiated or, to the knowledge of the Company’s knowledge, threatened pursuant to Section 8A of the Securities Act; no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto shall have been received by the Commission, Company; and all requests any request of the Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with disclosed to the reasonable satisfaction Representatives, allowing a reasonably practicable amount of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a)to respond, and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing Company will consider and address any reasonable comments from the Representatives with the Commission; and FINRA shall have raised no objection respect to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebyany such request.
(b) None of No Underwriter shall have been advised by the Underwriters Company, or shall have discovered and disclosed to the Company on or prior to Company, that (i) the Closing Date that any Registration Statement at the Effective Time, (ii) the Preliminary Prospectus or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General Disclosure Package, any Issuer Free Writing Prospectus (each when taken together with the Disclosure Package) at the Applicable Time, or (iii) the Prospectus or any amendment or supplement thereto as of its date or the Closing Date, in any case, contains or contained an untrue statement of a material fact which, in the opinion of such counsel, is material or omits or omitted to state any material fact which, in the opinion of such counsel, is material and is required to be stated therein or necessary in order to make the statementsstatements therein (in the case of the Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any supplement, in the light of the circumstances in under which they were made, ) not misleading; provided, however, that the foregoing shall not apply to information contained in or omitted from the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein (which information is specified in Section 12 hereof).
(c) All corporate proceedings incident The Representatives shall have received from Sidley Austin LLP, counsel to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLPopinion or opinions, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and Underwriters, dated the Closing Date, Date and in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing DateRepresentatives, with respect to such the Notes, Indenture, Registration Statement, Prospectus and Disclosure Package and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) At the time of the execution of this Agreement, the Representative The Representatives shall have received from Ernst Skadden, Arps, Slate, Mxxxxxx & Young LLP a letterFxxx LLP, counsel for the Company, the opinion or opinions, and negative assurance letter addressed to the Underwriters, executed and dated such datethe Closing Date, in form and substance satisfactory to the Representative Representatives.
(ie) confirming that they are an independent registered accounting firm with respect The Representatives shall have received from Shook, Hardy & Bacon L.L.P., Missouri counsel for the Company, the opinion, addressed to the Company within Underwriters, dated the meaning of the Securities Act Closing Date, in form and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect substance satisfactory to the financial statements and certain financial information contained or incorporated by reference in Representatives.
(f) The Representatives shall have received from Jxxxxxx X. Xxxxxx, General Counsel to the Registration StatementsCompany, the General Disclosure Package opinion, addressed to the Underwriters, dated the Closing Date, in form and substance satisfactory to the ProspectusRepresentatives.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative The Representatives shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, signed by the Chairman of its the Board or the Chief Executive Officer or any Executive or Senior Vice President of the Company and its by the Chief Financial Officer stating that or the Chief Accounting Officer of the Company, or other officers of the Company satisfactory to the Representatives, 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, and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be complied with or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for any such officers purpose have been initiated or, to the knowledge of such officers, threatened; and the Commission has not notified the Company of any objection to the use of the form of Registration Statement or any post-effective amendment thereto; (iii) the signers of such certificate have carefully examined the Registration Statement, the General Preliminary Prospectus, the Disclosure PackagePackage and the Prospectus, and any Permitted Free Writing amendments or supplements thereto (including any documents incorporated or deemed to be incorporated by reference into the Preliminary Prospectus and the Prospectus Prospectus), and, in their opinion, (x) the Registration Statements and each amendment thereto, at the Applicable Time, Statement as of the date of this Agreement and as of the Closing Date Effective Date, did not include any untrue statement of a material fact and did not or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, misleading and (y) the General Disclosure Package, as of the Applicable Time Time, and the Prospectus, as of its date, did not and, on the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did do not include any untrue statement of a material fact and did not or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, ; and (iv) there no event contemplated by Section 6(h) hereof has not beenoccurred.
(h) Except as described in the Preliminary Prospectus and the Prospectus, subsequent to (i) neither the Company nor any of its subsidiaries shall have sustained, since the date of the most recent latest audited financial statements included or incorporated by reference in the General Disclosure PackagePreliminary Prospectus, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and decree or (ii) since such date there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, subsidiaries or any change, or any development involving a prospective change, in or affecting the businesscondition (financial or otherwise), general affairs, management, financial positionresults of operations, stockholders’ equity equity, properties or results of operations business of the Company or any of and its subsidiaries, otherwise than subsidiaries taken as set forth in the General Disclosure Packagea whole, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) ), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery offering of the Stock Notes on the terms and in the manner contemplated in the General Disclosure PackageProspectus.
(i) Concurrently with the execution of this Agreement, the Representatives shall have received from Ernst & Young LLP, the Company’s independent registered public accounting firm, a “comfort” letter (the “initial comfort letter”) addressed to the Representatives on behalf of the Underwriters, dated the date hereof, 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 hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Prospectus, as of a date not more than three Business Days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and (iii) other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(j) No action The Representatives shall have been taken and no lawreceived a “bring-down comfort” letter (the “bring-down comfort letter”) from Ernst & Young LLP, statutethe Company’s independent registered public accounting firm, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent addressed to the issuance or sale Representatives on behalf of the Stock or materially Underwriters, dated the Closing Date, and adversely affect or potentially materially in form and adversely affect substance satisfactory to the business or operations Representatives (i) confirming that they are an independent registered public accounting firm within the meaning of the Company or any Securities Act and are in compliance with the applicable requirements relating to the qualification of its subsidiaries; and no injunction, restraining order or order accountants under Rule 2-01 of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale Regulation S-X of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations Commission, (ii) stating, as of the Company date of the bring-down comfort letter (or, with respect to matters involving changes or any developments since the respective dates as of its subsidiarieswhich specified financial information is given in the Prospectus, as of a date not more than three Business Days prior to the date of the bring-down comfort letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial comfort letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial comfort letter.
(k) Subsequent to the execution and delivery of this Agreement Agreement, (i) no downgrading shall have occurred in the rating accorded to the debt securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization” (as that term is defined in Rule 3(a)(62) under 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.
(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 NASDAQ New York Stock Exchange or the Nasdaq Global Select Market or in the over-the-counter market, or trading in any securities of the Company or any of its subsidiaries on any exchange or in the over-the-counter market, shall have been suspended or materially limited, limited or the settlement of such trading generally shall have been materially disrupted or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a banking moratorium shall have been declared by Federal federal or state authorities or authorities; (iii) a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, services; (iiiiv) the United States shall have become engaged in hostilitieshostilities after the date hereof, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, States or there shall have been a declaration of a national emergency or war by the United States States; or (ivv) there shall have occurred such a material adverse change in general economic, political or financial conditions 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 judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery offering of the Stock Notes or on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request. All opinions, letterscertificates, evidence letters and certificates mentioned above or elsewhere documents referred to in this Agreement shall be deemed to Section 6 will be in compliance with the provisions hereof of this Agreement only if they are reasonably satisfactory in form and substance reasonably satisfactory to the Representatives and to counsel for the Underwriters. The Company will furnish to the Representatives conformed copies of such opinions, certificates, letters and documents and such additional documents or certificates reasonably requested by the Representatives or counsel for the Underwriters in such number as the Representatives will reasonably request.
Appears in 2 contracts
Samples: Underwriting Agreement (O Reilly Automotive Inc), Underwriting Agreement (O Reilly Automotive Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and to purchase the closing of the sale of the Stock, Notes hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) (i) The Registration Statements have become effective under the Securities ActProspectus, and no stop order suspending any supplement thereto, have been filed in the effectiveness of manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); (ii) the final term sheet contemplated by Section 5(t) hereof and any Registration Statement or any part thereof, preventing or suspending other material required to be filed by the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof Company pursuant to Rule 433(d) shall have been issued filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no proceedings for that purpose or pursuant to Section 8A under (iii) any request of the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebyUnderwriters.
(b) None of the Underwriters shall have discovered and disclosed Subsequent to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact whichExecution Time, in the opinion of counsel for the Underwritersor, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreementif earlier, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Registration Statement (exclusive of any amendment thereto), the Disclosure Package and the Prospectus, as the case may be, as Prospectus (exclusive of a date not more than three (3) business days prior to the date of the bring-down letterany amendment thereof), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock occurred: (other than stock option and warrant exercises and stock repurchases in the ordinary course of businessi) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, general affairsproperties, managementnet worth, or results of operations of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in the Disclosure Package and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the Execution Time), the effect of which, in the sole judgment of the Representatives is so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement (exclusive of any amendments thereto), the Disclosure Package and the Prospectus (exclusive of any supplement thereto); or (ii) any event or development relating to or involving the Company and its subsidiaries or any officer or director of the Company and its subsidiaries which makes any statement made in the Disclosure Package or the Prospectus untrue or which, in the opinion of the Company and its counsel or the Representatives and their counsel, requires the making of any addition to or change in the Disclosure Package in order to state a material fact required by the Act or any other law to be stated therein, or necessary in order to make the statements therein not misleading, if amending or supplementing the Disclosure Package to reflect such event or development would, in the opinion of the Representatives, adversely affect the market for the Notes.
(c) The Representatives shall have received on the Closing Date opinions of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the Company, dated as of such date and addressed to the Representatives, substantially in the forms attached hereto as Exhibit A-1 and Exhibit A-2.
(d) The Representatives shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated as of such date and addressed to the Representatives with respect to such matters as the Underwriters may request.
(e) The Representatives shall have received letters addressed to the Representatives and dated as of the date hereof and as of the Closing Date from Ernst & Young LLP, independent registered public accounting firm, substantially in the form heretofore approved by the Underwriters; provided that the letters delivered on the date hereof and on the Closing Date shall use a “cut-off” date no more than three (3) Business Days prior to such dates.
(f) (A) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Commission at or prior to the Closing Date; (B) there shall not have been any material change in the capital stock of the Company nor any material increase in the short-term or long-term debt (including any off-balance sheet activities or transactions) of the Company and its subsidiaries (other than in the ordinary course of business) from that set forth or contemplated in the Registration Statement, the Disclosure Package or the Prospectus (or any amendment or supplement thereto); (C) there shall not have been, since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), except as may otherwise be stated in the Registration Statement, the Disclosure Package and Prospectus (or any amendment or supplement thereto), any material adverse change in the condition (financial positionor other), stockholders’ equity business, prospects, properties, net worth or results of operations of the Company or its subsidiaries; (D) the Company and its subsidiaries shall not have any liabilities or obligations (financial or other), direct or contingent (whether or not in the ordinary course of business), that are material to the Company or its subsidiaries, otherwise other than as set forth those reflected in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, Registration Statement or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
Prospectus (lor any amendment or supplement thereto); and (E) The all the representations and warranties of the Company contained in this Agreement shall have filed a Notification: Listing be true and correct at and as of Additional Shares with the NASDAQ Global Market Execution Time and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence as if made at and as of such time or on and as of such date, and the good standing Representatives shall have received a certificate, dated the Closing Date and signed by either the chief executive officer or chief operating officer and the chief financial officer of the Company (or such other officers as are acceptable to the Representatives), to the effect set forth in the State of Delaware this Section 8(f) and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictionsSection 8(g) hereof.
(ng) The Representative Company shall not have received failed at or prior to the written agreementsClosing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder or under the Indenture, substantially in at or prior to the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this AgreementClosing Date.
(oh) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange 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.
(i) The Company shall have furnished or caused to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have be furnished to the Representative Representatives such further certificates and documents as the Representative may reasonably requestRepresentatives shall have requested. All such opinions, letterscertificates, evidence letters and certificates mentioned above or elsewhere in this Agreement shall be deemed to other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance reasonably satisfactory to the Representatives and their counsel. Any certificate or document signed by any officer of the Company and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by the Company to the Underwriters as to the statements made therein. If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled by the Representatives at, or at any time prior to, the Closing Date. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. With respect to the Closing Date, the documents required to be delivered by this Section 8 shall be delivered at the offices of Xxxxxx & Xxxxxx L.L.P., Attn: Xxxxxxxxxxx X. Xxxxx, Esq., counsel for the Underwriters, at 0000 Xxxxxxxxxxxx Xxxxxx XX, Xxxxx 000 Xxxx, Xxxxxxxxxx, XX 00000, on or prior to such date.
Appears in 2 contracts
Samples: Underwriting Agreement (National Retail Properties, Inc.), Underwriting Agreement (National Retail Properties, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, accuracy of the representations and warranties of the Company contained herein when made and as of the Applicable Time and on the such Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing the Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the each Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General Disclosure Package, any Issuer Free Writing Pricing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the any Registration StatementsStatement, the General Disclosure Package, each Issuer Free Writing Pricing Prospectus and the 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, Underwriters and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick Skadden, Arps, Slate, Mxxxxxx & West LLP, counsel for the Company, Fxxx LLP shall have furnished to the Representative such counsel’s written opinion and negative assurance statementopinion, each as counsel to the Company, addressed to the Underwriters and dated the such Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter MxXxxxxxx Will & Exxxx LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP Rxxxxxxxx Kass a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 StatementsStatement, the General Disclosure Package Pricing Prospectus and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on such the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP Rxxxxxxxx Kxxx addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package Pricing Prospectus and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the such Closing Date, of its Chief Executive Officer Chairman of the Board or President and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Pricing Prospectus and the Prospectus and, in their opinion, the each Registration Statements Statement and each amendment thereto, at the Applicable Time, as of the date of this Agreement their respective effective dates and as of the such Closing Date 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 not misleading, and the General Disclosure PackagePricing Prospectus, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to best of their knowledgeknowledge after reasonable investigation, as of the such Closing Date, the representations and warranties of the Company in this Agreement are true and correct in all material respects and the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date, and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure PackagePricing Prospectus, any material adverse change in the financial position or results of operations of the Company or any of its subsidiariesCompany, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a wholeCompany, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesthe Sponsor; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(j) On the Effective Date, the Company or any shall have delivered to the Representative executed copies of its subsidiariesthe Trust Agreement, the Subscription Agreement, the Private Placement Agreement and each of the Insider Letters.
(k) 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 NASDAQ New York Stock Exchange or the Nasdaq Global Market 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an a material act of terrorism, or there shall have been an outbreak of or material 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the reasonable judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package Pricing Prospectus and the Prospectus.
(l) The Company Exchange shall have filed a Notification: Listing approved the Stock for listing therein, subject only to official notice of Additional Shares with the NASDAQ Global Market issuance and shall have received no objection thereto from the NASDAQ Global Marketevidence of satisfactory distribution.
(m) The Representative Cxxxx shall have received on and as of the such Closing Date satisfactory evidence of the good standing of the Company in the State its jurisdiction of Delaware organization and existence its good standing as a foreign corporation entity in the State of Washingtonsuch other jurisdictions as Cxxxx may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the such Closing Date, the Company shall have furnished to the Representative Cxxxx such further certificates and documents as the Representative Cxxxx 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Global Defense & National Security Systems, Inc.), Underwriting Agreement (Global Defense & National Security Systems, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or Statement, as amended by any amendment or supplement thereto thereto, contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Warrants, the Warrant Shares, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLPAkerman Senterfitt, corporate counsel for to the Company, shall have furnished to the Representative such counsel’s written opinion addressed to the Underwriters and negative assurance statementdated the Closing Date, each in form and substance reasonably satisfactory to the Representative. Xxxxxxx & Xxxxxxx, special intellectual property counsel to the Company, shall have furnished to the Representative such counsel’s written opinion addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative. Xxxxx, Xxxxxx & XxXxxxxx, P.C., special regulatory counsel to the Company, shall have furnished to the Representative such counsel’s written opinion addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, shall have furnished to the Representative such counsel’s written opinion opinion, addressed to the Underwriters and negative assurance statement, dated the Closing Date, with respect in form and substance reasonably satisfactory to such matters as the Underwriters may reasonably requireRepresentative, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young Xxxxx Xxxxxxxx LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young Xxxxx Xxxxxxxx LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer or President and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at as of their respective effective dates, the Applicable Timedate of first use of the Prospectus, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth thereinProspectus, (iii) to the best of their knowledgeknowledge after reasonable investigation, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiariesCompany, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a wholeCompany, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofPackage, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiariesCompany, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiariesCompany, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) ), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock and Warrants on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(k) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company’s corporate credit rating or the rating accorded the Company’s debt securities 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 (other than an announcement with positive implications of a possible upgrading), the Company’s corporate credit rating or the rating of any of the Company’s debt securities.
(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 New York Stock Exchange, the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market or the NYSE Amex 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States resulting in a disruption of the securities markets or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock and Warrants on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lm) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Capital Market and shall have received no objection thereto from the NASDAQ Global Capital Market.
(mn) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing as foreign entities in such other jurisdictions as the State of Delaware and existence as a foreign corporation in the State of WashingtonRepresentative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(no) The Representative shall have received the written agreements, substantially in the form of Exhibit A B hereto, of the persons officers, directors, stockholders, option holders and entities warrant holders of the Company listed in Exhibit B Schedule III to this Agreement.
(op) The Company Representative shall have furnished to received on the Underwriters Closing Date a Secretary’s Certificate certificate of the Secretary of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pq) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Catalyst Pharmaceutical Partners, Inc.), Underwriting Agreement (Catalyst Pharmaceutical Partners, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company Representing Parties contained herein, to the accuracy of the statements of the Company Representing Parties made in any certificates pursuant to the provisions hereof, to the performance by the Company Representing Parties of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under Prior to the Securities ActClosing Date, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, ; and all requests for additional information on the part any request of the Commission (to be included or incorporated by reference for inclusion of additional information in the Registration Statements Statement or the Prospectus or otherwise) otherwise shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentative[s]; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Depositor shall have filed the Prospectus and the Preliminary Prospectus shall have been filed with, and the Final Terms FWP with the Commission pursuant to Rule 424(b), Rule 424(h) and Rule 433 of the Securities Act, as applicable, within the applicable time period prescribed for by such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), rules; and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with Depositor will file the Commission; certifications and FINRA shall have raised no objection the Transaction Documents necessary to satisfy the fairness and reasonableness conditions for the offering of the terms of this Agreement or Notes under Form SF-3 in the transactions contemplated herebymanner and within the time required by the General Instructions to Form SF-3.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the StockSecurities, each of the Transaction Documents, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus Statement and the Prospectus Prospectus, and all other legal matters relating to such agreements and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company Representing Parties shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) The Trust Agreement shall have been duly executed and delivered by the Depositor and the Owner Trustee and the Certificates shall have been duly executed and delivered by the Owner Trustee on behalf of the Issuer and duly authenticated by the Owner Trustee.
(d) Fenwick & West LLPThe Sale and Servicing Agreement shall have been duly executed and delivered by the Depositor, the Bank, as Seller and Servicer, the Issuer and the Indenture Trustee.
(e) The Indenture shall have been duly executed and delivered by the Issuer and the Indenture Trustee and the Notes shall have been duly executed and delivered by the Owner Trustee on behalf of the Issuer and duly authenticated by the Indenture Trustee.
(f) The Receivables Purchase Agreement shall have been duly executed and delivered by the Seller and the Depositor.
(g) The Asset Representations Review Agreement shall have been duly executed and delivered by the Issuer, the Asset Representations Reviewer, the Sponsor and the Servicer.
(h) The Representatives shall have received evidence satisfactory to them and their counsel for that within ten days of the CompanyClosing Date, UCC-1 financing statements required to be filed on or prior to the Closing Date pursuant to the Transaction Documents have been filed.
(i) [ ], [ ] of [United Services Automobile Association], shall have furnished to the Representative such counsel’s Representatives his written opinion and negative assurance statementopinion, each addressed to the Underwriters Representatives and dated the Closing Date, regarding the due organization and power and authority of the Bank, the due authorization, execution and delivery by the Bank of the Transaction Documents to which it is a party, no conflicts or violations of its charter or by-laws, contracts or law and other related matters, in form and substance reasonably satisfactory to the RepresentativeRepresentative[s] and their counsel.
(ej) [ ], special Delaware counsel to the Depositor, shall have furnished to the Representative[s] their written opinion, as counsel to the Depositor, addressed to the Representative[s] and dated the Closing Date, regarding (i) the due organization of the Depositor and (ii) other general Delaware law matters with respect to the Depositor, including, without limitation, the due authorization, execution and delivery of the Transaction Documents by the Depositor, in each case, in form and substance reasonably satisfactory to the Representative[s] and their counsel.
(k) [ ], special Delaware counsel to the Issuer, shall have furnished to the Representative[s] their written opinion, as counsel to the Issuer, addressed to the Representative[s] and dated the Closing Date, regarding (i) the due organization of the Issuer, (ii) the enforceability of the Trust Agreement, (iii) other general Delaware law matters with respect to the Issuer, including, without limitation, the due authorization, execution and delivery by the Issuer of the Transaction Documents to which it is a party and the due authorization and issuance of the Certificates, (iv) the perfection of the security interest created by the Sale and Servicing Agreement and (v) the perfection of the security interest created by the Indenture, in each case, in form and substance reasonably satisfactory to the Representative[s] and their counsel.
(l) Xxxxx Xxxxx LLP shall have furnished to the Representative[s] (i) their written opinion, addressed to the Representative[s] and dated the Closing Date, regarding enforceability, general corporate matters, the validity of the Notes, the Registration Statement and the Prospectus and (ii) a negative assurance letter concerning the Prospectus and the Time of Sale Information, in each case, in form and substance reasonably satisfactory to the Representative[s] and their counsel.
(m) Xxxxx Xxxxx LLP shall have furnished to the Representative[s] their written opinion, addressed to the Representative[s] and dated the Closing Date, with respect to certain matters relating to the transfer of the Receivables by the Seller to the Purchaser, in form and substance reasonably satisfactory to the Representative[s] and their counsel.
(n) Xxxxx Xxxxx LLP shall have furnished to the Representative[s] their written opinion, addressed to the Representative[s] and dated the Closing Date, to the effect that (i) the Issuer will not be an association (or a publicly traded partnership) taxable as a corporation for federal income tax purposes, (ii) the Notes will be characterized as indebtedness for federal income tax purposes and (iii) the statements set forth in the Preliminary Prospectus and in the Prospectus under the heading “Material Federal Income Tax Consequences”, to the extent that they are statements of law are true and correct in all material respects, in form and substance reasonably satisfactory to the Representative[s] and their counsel.
(o) The Representative Representative[s] shall have received from Xxxxxxx Procter LLP[ ], counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the Closing Date, with respect to such matters as the Underwriters Representative[s] may reasonably require, and the Company Bank and the Depositor shall have furnished to such counsel such documents as they reasonably request for enabling them to pass upon such matters.
(fp) At [ ], counsel to the time of the execution of this AgreementOwner Trustee, the Representative shall have received from Ernst & Young LLP a letterfurnished to the Representative[s] their written opinion, as counsel to the Owner Trustee, addressed to the Underwriters, executed Representative[s] and dated such datethe Closing Date, regarding the due organization of the Owner Trustee, the due authorization, execution and delivery by the Owner Trustee of the Trust Agreement, no conflicts or violations of organizational documents, contracts or law and other related matters, in form and substance reasonably satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act Representative[s] and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectustheir counsel.
(gq) On [ ], counsel to the effective date of any post-effective amendment Indenture Trustee, shall have furnished to any Registration Statement the Representative[s] their written opinion, as counsel to the Indenture Trustee, addressed to the Representative[s] and on dated the Closing Date, regarding the Representative due organization of the Indenture Trustee, the due authorization, execution and delivery by the Indenture Trustee of the Transaction Documents to which it is a party, no conflicts or violations of organizational documents, contracts or law and other related matters, in form and substance reasonably satisfactory to the Representative[s] and their counsel.
(r) [ ], in-house counsel to the Asset Representations Reviewer, shall have furnished to the Representatives his written opinion, as counsel to the Asset Representations Reviewer, addressed to the Representatives and dated the Closing Date, regarding the due organization of the Asset Representations Reviewer, the due authorization, execution and delivery by the Asset Representations Reviewer of the Asset Representations Review Agreement, no conflicts or violations of organizational documents, contracts or law, the enforceability of the Asset Representations Reviewer Agreement and other related matters, in form and substance reasonably satisfactory to the Representatives and their counsel.
(s) The Representative[s] shall have received one or more letters dated the date hereof (the “Procedures Letters”) from a firm of independent nationally recognized certified public accountants acceptable to the Representative[s] verifying the accuracy of such financial and statistical data contained in the Prospectus (including any static pool data included therein pursuant to Item 1105 of Regulation AB under the Securities Act) as the Representative[s] shall deem advisable. In addition, if (1) any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data or (2) the Depositor files a Form 8-K pursuant to Section 3(a)(xii) herein or in connection with the characteristics of the Receivables, the Representative[s] shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of confirming 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 General Disclosure Package Procedures Letters and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of providing additional comfort on such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6new data.
(ht) The Company Representative[s] shall have furnished to the Representative received a certificate, dated the Closing Date, of its Chief Executive Officer any of the Chairman of the Board, the President, any Senior Vice President, any Vice President or the chief financial officer of each of the Bank and its Chief Financial Officer the Depositor stating that (i) such officers have carefully examined the Registration Statement, representations and warranties of the General Disclosure Package, any Permitted Free Writing Prospectus and Bank or the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable TimeDepositor, as of the date of applicable, contained in this Agreement and as of the Closing Date did not include any untrue statement of Transaction Documents to which it is a material fact party are true and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time correct on and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package Bank or the Prospectus that has not been so set forth therein, (iii) to their knowledgeDepositor, as of the Closing Dateapplicable, 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 and under such agreements at or prior to the Closing Date, (iii) 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 best of his or her knowledge, are contemplated by the Commission, and (iv) since [ ], 20[ ], there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any been no material adverse change in the financial position or results of operations of the Company Bank or the Depositor, as applicable, or the Issuer or any of its subsidiarieschange, or any change or development that, singularly or in the aggregate, would involve a material adverse change or including a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets business or prospects of the Company and its subsidiaries taken Bank or the Depositor, as a wholeapplicable, or the Issuer except as set forth in or contemplated by the Registration Statement and the Prospectus.
(iu) Since The Representative[s] shall have received letters from the date of Rating Agencies stating that the latest audited financial statements included in Notes have received the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as ratings set forth in the General Disclosure PackageRatings FWP, and (ii) there such ratings shall not have been any change in rescinded and no public announcement shall have been made by either Rating Agency that the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt rating of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure PackageNotes has been placed under review.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(kv) 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 NASDAQ Global Market New York Stock Exchange, the American Stock Exchange or trading in any securities of the Company on any exchange or in the over-the-counter market, market shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any either of such exchange exchanges or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by Federal or state authorities or a New York State authorities, (iii) there shall have been any material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iiiiv) any material adverse change in the United States shall have become engaged financial markets in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, any outbreak or there shall have been escalation of hostilities or a declaration by the United States of a national emergency or war by the United States or any other substantial national or international calamity or emergency or any change or development involving a prospective change in national or international political, financial or economic conditions or (ivv) there shall have occurred such a any material adverse change in general economicthe condition, political financial or financial conditions (otherwise, or in the earnings, business affairs or business prospects of the Bank or the effect of international conditions on the financial markets Depositor, whether or not arising in the United States shall be suchordinary course of business, which materially impairs the investment quality of the Notes, that in the case of clause (iv) as to make or (v) makes it, in the reasonable judgment of a majority in interest of the Representativeseveral Underwriters, impracticable or inadvisable to proceed with the sale public offering or the delivery of the Stock Notes on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lw) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and Representative[s] shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company Indenture Trustee, a certificate stating that any information contained in the State Statement of Delaware Eligibility and existence as a foreign corporation in Qualification (Form T-1) filed with the State of WashingtonRegistration Statement, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreementsis true, substantially in the form of Exhibit A hereto, of the persons accurate and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably requestcomplete. 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Usaa Acceptance LLC), Underwriting Agreement (Usaa Acceptance LLC)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the each Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a)) of this Agreement, and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; Commission and FINRA shall have raised no unresolved objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) The Underwriters shall have received on the Closing Date a certified copy of (i) the minutes or resolutions of the Board (or a duly constituted committee thereof) resolving, inter alia, to approve the execution by the Company of this Agreement, the Deposit Agreement, the Registration Statement, the ADS Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and the listing of the ADSs on the Exchange, and (ii) the minutes of a general meeting of the Company at which resolutions were passed to, inter alia, give the Board authority to allot the Ordinary Shares represented by ADSs and the Offered Securities in the form of Ordinary Shares and to disapply statutory pre-emption rights in respect of such allotment.
(c) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(cd) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the StockDeposit Agreement, the Offered Securities, the Registration StatementsStatement, the ADS Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus and the 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 to 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.
(de) Fenwick & West Xxxxxx LLP, U.S. counsel for to the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statementletter, each addressed to the Underwriters and dated the as of such Closing Date, in form and substance reasonably satisfactory to the Representative.
(ef) The Representative Xxxxxx (UK) LLP, UK counsel to the Company, shall have received from Xxxxxxx Procter LLP, counsel for furnished to the Underwriters, Representative such counsel’s written opinion and negative assurance statementopinion, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(pg) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the UnderwritersIntentionally omitted.
Appears in 2 contracts
Samples: Underwriting Agreement, Underwriting Agreement (Tiziana Life Sciences PLC)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, to purchase the Firm Units and the closing of Option Units, as the sale of the Stockcase may be, are shall be subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties of the Company DCP Parties contained hereinherein as of the Execution Time, the Closing Date and any Option Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company DCP Parties made in any certificates pursuant to the provisions hereof, to the performance by the Company DCP Parties of its their obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Registration Statements All filings required by Rule 424 and Rule 430B shall have become effective been made; any other material required to be filed by the Partnership pursuant to Rule 433(d) under the Securities Act, and Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order (i) suspending the effectiveness of any the Registration Statement or any part thereof, (ii) suspending or preventing or suspending the use of any Base Prospectus, any the Preliminary Prospectus, the Final Prospectus or any Permitted Issuer Free Writing Prospectus or any part thereof Prospectus, shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated instituted or, to the Company’s knowledgeknowledge of the DCP Parties or any Underwriter, threatened by the Commission, and all requests for additional information on the part . Any request of the Commission (to be included or incorporated by reference for inclusion of additional information in the Registration Statements Statement or the Final Prospectus or otherwise) otherwise shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebyUnderwriters.
(b) None of the Underwriters No Underwriter shall have discovered and disclosed to any of the Company DCP Parties on or prior to the Closing Date or any Option Closing Date pursuant to Section 3 hereof that any the Registration Statement Statement, the Final Prospectus or the Disclosure Package, or any amendment or supplement thereto thereto, contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material documents incorporated by reference therein or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statementsstatements therein, in the light of the circumstances in under which they were made, not misleading.
(c) All corporate corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the StockCharter Documents, the Registration StatementsCommon Units, the General Disclosure PackagePackage or the Final Prospectus, each Issuer Free Writing Prospectus and the Prospectus 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 DCP Parties shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick The Partnership shall have requested and caused Holland & West Xxxx LLP, counsel for the CompanyPartnership, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to the Representatives to the effect set forth on Exhibit B hereto.
(e) Xxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of DCP Midstream GP, LLC, shall have furnished to the Representative such counsel’s written opinion Representatives his opinion, dated the Closing Date and negative assurance statement, each addressed to the Underwriters and dated the Closing DateRepresentatives, in form and substance reasonably satisfactory to the RepresentativeRepresentatives to the effect set forth on Exhibit C hereto.
(ef) The Representative Representatives shall have received from Xxxxxxx Procter LLPXxxxx Xxxxx L.L.P., counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the Closing DateDate and addressed to the Representatives, with respect to such the issuance and sale of the Units, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriters Representatives may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fg) At The Partnership shall have furnished to the time Representatives a certificate of the execution Partnership, signed on behalf of this Agreementthe Partnership by the Chairman of the Board or the President and the Chief Financial Officer of DCP Midstream GP, LLC, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Representative Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and this Agreement and that:
(i) the representations and warranties of each of the DCP Parties in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and each of the DCP Parties 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 or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the DCP Parties’ knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), results of operations, prospects, earnings, business or properties of the Partnership Entities and Operating Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(h) The Partnership shall have received from Ernst requested and caused Deloitte & Young Touche LLP a letter, addressed to have furnished to the UnderwritersRepresentatives, executed at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated such daterespectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative Representatives, (i) confirming that they are such firm is an independent registered public accounting firm with respect to the Company within the meaning of the Securities Act and Act, the Rules and Regulations and PCAOB and the rules of the PCAOB, (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirmingstating, as of the date of the bring-down letter hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Final Prospectus, as the case may be, as of a date not more than three (3) business days Business Days prior to the date of the bring-down letterhereof), the conclusions and findings of such firm, of firm with respect to the type financial information and (iii) covering such other matters as are ordinarily included in covered by accountants’ “comfort letters” to underwriters, underwriters in connection with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6registered public offerings.
(hi) The Company Partnership shall have requested and caused Ernst & Young LLP to have furnished to the Representative a certificateRepresentatives, dated at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration StatementRepresentatives), the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, dated respectively as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Execution Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date in form and as substance satisfactory to the Representatives, (i) confirming that such firm is an independent registered public accounting firm within the meaning of the Closing DateAct, the Prospectus Rules and each amendment or supplement thereto, as Regulations and the rules of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleadingPCAOB, (ii) stating as of the date hereof (or, with respect to matters involving changes or developments since the effective respective dates as of which specified financial information is given in the Disclosure Package and the Final Prospectus, as of a date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment not more than three Business Days prior to the Registration Statementsdate hereof), the General Disclosure Package or conclusions and findings of such firm with respect to the Prospectus that has not been so set forth therein, financial information and (iii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to their knowledge, as of the Closing Date, the representations and warranties of the Company underwriters in this Agreement are true and correct and the Company has complied connection with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectusregistered public offerings.
(ij) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in and the General Disclosure Package as of the date hereofFinal Prospectus, (i) none of the Company and its subsidiaries Partnership Entities or Operating Subsidiaries shall not have sustained 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 order, investigation or decree, otherwise than as set forth or contemplated in the General Disclosure PackagePackage and the Final Prospectus, or shall have become a party to or the subject of any litigation, court or governmental action, investigation, order or decree that is materially adverse to the Partnership Entities and Operating Subsidiaries, taken as a whole, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases capitalization or increase in the ordinary course of business) short-term or long-term debt of the Company or any of its subsidiaries, the Partnership Entities or Operating Subsidiaries or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, condition (financial positionor otherwise), stockholders’ equity or equity, partners’ equity, members’ equity, results of operations operations, properties, business or prospects of the Company or any of its subsidiariesPartnership Entities and Operating Subsidiaries, otherwise than except as set forth in or contemplated in the General Disclosure Package, Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any such case described referred to in clause (i) or (ii) of this paragraph (i) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable impractical or inadvisable to proceed with the sale offering or delivery of the Stock on Units as contemplated by the terms and in the manner contemplated in the General Disclosure Package.
Registration Statement (j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order exclusive of any other nature by amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any federal amendment or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariessupplement thereto).
(k) Subsequent to the execution and delivery of this Agreement there Agreement, if any debt securities of the Partnership Entities are rated by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act, (i) no downgrading shall have occurred, and no notice shall have been given of any intended or potential downgrading or of a possible change in any such rating that does not indicate the direction of the possible change in the rating accorded such debt securities and (ii) no such organization shall have occurred publicly announced that it has under surveillance or review, with possible negative implications, its rating of any securities of any of the following: (i) trading in securities generally on the NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the ProspectusPartnership Entities.
(l) The Company Prior to the Closing Date, the Partnership shall have filed a Notification: Listing of Additional Shares with furnished to the NASDAQ Global Market Representatives such further information, certificates and shall have received no objection thereto from documents as the NASDAQ Global MarketRepresentatives may reasonably request.
(m) The Representative NYSE shall have received on and as approved the Units for listing, subject only to official notice of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictionsissuance.
(n) The Representative At the Execution Time, the Partnership shall have received furnished to the written agreements, Representatives letters substantially in the form of Exhibit A heretohereto from (i) each officer and director of DCP Midstream GP, LLC and (ii) DCP Midstream and any of its subsidiaries or affiliates that own any Common Units or any securities convertible into or exercisable or exchangeable for Common Units, addressed to the Representatives and such letters shall be in full force and effect on the Closing Date and any Option Closing Date. If any of the persons conditions specified in this Section 6 shall not have been fulfilled when and entities listed as provided in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate , or if any of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request. All opinions, letters, evidence opinions and certificates mentioned above or elsewhere in this Agreement shall not be deemed to be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance reasonably satisfactory to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Holland & Xxxx LLP, counsel for the DCP Parties, at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, or electronically if agreed to by the parties, on or prior to the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (DCP Midstream Partners, LP), Underwriting Agreement (DCP Midstream Partners, LP)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the such Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and no injunction, restraining order or order of any nature by a federal or state or Israeli court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Securities or the Representative’s Securities, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a3(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such 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 in which they were made, not misleading, or that the General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the StockSecurities, the Registration StatementsStatement, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick The Representative shall have received an opinion and 10b-5 statement from Xxxx & West Loeb LLP, U.S. securities counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the RepresentativeRepresentative and previously agreed upon with counsel for the Underwriters.
(e) The Representative shall have received an opinion and 10b-5 statement from Xxxxxxx Procter Xxxxx Xxxx Well Orion & Co., Israeli counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representative and previously agreed upon with counsel for the Underwriters.
(f) The Representative shall have received an opinion and 10b-5 statement from Xxxxx Xxxxxxx US LLP, regulatory counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representative and previously agreed upon with counsel for the Underwriters.
(g) The Representative shall have received an opinion and 10b-5 statement from Xxxxxxx-Xxxxx, intellectual property counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representative and previously agreed upon with counsel for the Underwriters.
(h) The Representative shall have received an opinion and 10b-5 statement from Xxxx Xxxxx LLP, U.S. counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date or the Option Closing Date, as the case may be, with respect to such matters as the Underwriters Representative may reasonably requirerequest, and the Company such counsel shall have furnished to such counsel received such documents and information as they may reasonably request for enabling to enable them to pass upon such matters.
(fi) The Representative shall have received an opinion and 10b-5 statement from Xxxx, Xxxxxx, Xxxxxxx & Co., Israeli counsel for the Underwriters, dated the Closing Date or the Option Closing Date, as the case may be, with respect to such matters as the Representative may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(j) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP the Auditors a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 StatementsStatement, the General Disclosure Package and the Prospectus.
(gk) On the effective date of any post-effective amendment to any Registration Statement and on the such Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP the Auditors addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Registration Statement, the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (fh) of this Section 65.
(hl) The Company shall have furnished to the Representative a certificate, dated the such Closing Date, of its Chairman of the Board or Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements Statement and each amendment thereto, at the Applicable Time, as of the date of this Agreement their respective effective dates and as of the such Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration StatementsStatement, the General Disclosure Package or the Prospectus that has not been so set forth thereinProspectus, (iii) to the best of their knowledgeknowledge after reasonable investigation, as of the such Closing Date, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiariesCompany, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a wholeCompany, except as set forth in the Prospectus.
(im) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofPackage, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the share capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiariesCompany, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholdersshareholders’ equity or results of operations of the Company or any of its subsidiariesCompany, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) l), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock Units on the terms and in the manner contemplated in the General Disclosure Package.
(jn) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any Israeli, federal, state or foreign governmental or regulatory agency or body which would prevent the issuance or sale of the Stock Units or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal Israeli, federal, state or state foreign court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock Units or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(ko) 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 NASDAQ Global Market New York Stock Exchange, the Exchange, The NYSE MKT, any other national securities 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal the United States, New York State or state Israeli authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesStates or Israel, (iii) there shall have occurred any outbreak or escalation of hostilities in which the United States shall have become engaged in hostilities, or the subject of an act of terrorism, Israel is involved or there shall have been an outbreak of or escalation in hostilities involving declaration by the United States, States or there shall have been a declaration Israel of a national emergency or war by or other calamity or crisis as to make it, in the United States judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated in the Registration Statement, the General Disclosure Package and the Prospectus or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions in the United States or Israel (or the effect of international conditions on the financial markets in the United States and/or Israel shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock Units on the terms and in the manner contemplated in the Registration Statement, the General Disclosure Package and the Prospectus.
(lp) The Company Exchange shall have filed a Notification: Listing approved the Securities for listing therein, subject only to official notice of Additional Shares with the NASDAQ Global Market issuance and shall have received no objection thereto from the NASDAQ Global Marketevidence of satisfactory distribution.
(mq) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(r) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded any of the Company’s securities by any “nationally recognized statistical organization,” as that 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 securities.
(s) The Representative shall have received on and as of the such Closing Date satisfactory evidence of the good standing valid existence of the Company as a non-breaching company (within the meaning of Section 362A of the Israeli Companies Law) in the State its jurisdiction of Delaware organization and existence its good standing as a foreign corporation entity in such other jurisdictions as the State of WashingtonRepresentative may reasonably request (to the extent applicable in such jurisdiction), in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(nt) The Representative shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons officers, directors, shareholders, optionholders and entities warrantholders of the Company listed in Exhibit B Schedule E to this Agreement.
(ou) The Company Representative shall have furnished to received the Underwriters a SecretaryRepresentative’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersWarrant.
(pv) On or prior to the such Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Check-Cap LTD), Underwriting Agreement (Check-Cap LTD)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, Underwriter hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties of the Company Company, the Adviser and the Administrator contained herein, to the accuracy in this Agreement or in certificates of any officer of the statements Company, the Adviser, the Administrator or any of the Company made in any certificates their respective subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company Company, the Adviser and the Administrator of its their respective covenants and other obligations hereunder, and to each of the following additional terms and further conditions:
(a) The Registration Statements have Statement, including any Rule 462(b) Registration Statement, has become effective under and as of the Securities Act, and Closing Date no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities 1933 Act shall have been or proceedings therefor initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information any request on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) for additional information shall have been complied with to the reasonable satisfaction of counsel to the Representative; Underwriter. A final prospectus containing the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus 430C Information shall have been filed with, with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby497.
(b) None The Underwriter shall have received the favorable opinion, dated as of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement Date, of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West Dechert LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion Adviser and negative assurance statement, each addressed to the Underwriters and dated the Closing DateAdministrator (“Dechert”), in form and substance reasonably satisfactory to the RepresentativeUnderwriter, in the form set forth in Exhibit E hereto and to such further effect as the Underwriter may reasonably request.
(ec) The Representative Underwriter shall have received from Xxxxxxx Procter Fried, Frank, Harris, Sxxxxxx & Jxxxxxxx, LLP, counsel for the UnderwritersUnderwriter, together with signed or reproduced copies of such counsel’s written opinion and negative assurance statementopinion, dated as of the Closing DateDate and addressed to the Underwriter, with respect to the issuance and sale of the Securities, this Agreement, the Registration Statement, any Rule 462(b) Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements thereto and such other matters as the Underwriters Underwriter may reasonably require, and the Company Company, the Adviser and the Administrator shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In giving such opinion such counsel may rely without investigation, as to all matters governed by the laws of any jurisdictions other than the law of the State of New York, the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter.
(fd) At On the time Closing Date or the applicable Option Closing Date, as the case may be, there shall not have been, since the date hereof or since the respective dates as of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial which information contained or incorporated by reference is given in the Registration StatementsStatement, the General Disclosure Package and the ProspectusProspectus (in each case exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business.
(ge) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative Underwriter shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as certificate 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 General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Company’s Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration StatementOfficer, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and dated as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as to the effect that (i) there has been no such material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Closing DateCompany and its subsidiaries considered as one enterprise, the Prospectus and each amendment whether or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, arising in the light ordinary course of the circumstances in which they were made, not misleadingbusiness, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, the representations and warranties of the Company in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing DateDate under or pursuant to this Agreement, and (iv) there has not been, subsequent to no stop order suspending the date effectiveness of the most recent audited financial statements included Registration Statement has been issued and no proceedings for that purpose have been instituted or incorporated are pending or, to their knowledge, are contemplated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the ProspectusCommission.
(if) Since On the date Closing Date, the Underwriter shall have received a certificate of the latest audited financial statements included in the General Disclosure Package Adviser’s Chief Executive Officer and Chief Financial Officer or incorporated by reference in the General Disclosure Package equivalent officer(s), dated as of the date hereofClosing Date, to the effect that (i) the Company representations and its subsidiaries shall not have sustained any loss or interference warranties of the Adviser in this Agreement are true and correct 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, otherwise than the same force and effect as set forth in though expressly made at and as of the General Disclosure Package, Closing Date and (ii) there the Adviser has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date under or pursuant to this Agreement.
(g) On the Closing Date, the Underwriter shall not have been any change received a certificate of the Administrator’s Chief Executive Officer and Chief Financial Officer or equivalent officer(s), dated as of the Closing Date, to the effect that (i) the representations and warranties of the Administrator in this Agreement are true and correct with the capital stock same force and effect as though expressly made at and as of the Closing Date and (other than stock option ii) the Administrator has complied with all agreements and warrant exercises satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date under or pursuant to this Agreement.
(h) At the Execution Time, the Underwriter shall have received from each of Ernst & Young LLP and stock repurchases RSM US LLP, a letter, each dated as of the Execution Time and in form and substance satisfactory to the ordinary course Underwriter, containing statements and information of business) or long-term debt the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company or any of its subsidiariescontained in the Registration Statement, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in Prospectus and any such case described in clause amendments or supplements thereto.
(i) or On the Closing Date, the Underwriter shall have received from each of Ernst & Young LLP and RSM US LLP, a letter, each dated as of the Closing Date and in form and substance satisfactory to the Underwriter, to the effect that they reaffirm the statements made in the letters furnished pursuant to subsection (iih) of this paragraph (i) isSection 5, in except that the judgment of specified date referred to shall be a date not more than three business days prior to the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure PackageClosing Date.
(j) No action On the Closing Date, and each Option Closing Date, if any, the Securities shall have been taken and no lawapproved for listing on The Nasdaq Global Select Market, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale subject only to official notice of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesissuance.
(k) Subsequent Prior to the execution and delivery date of this Agreement there shall not have occurred any of Agreement, the following: (i) trading in securities generally on the NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and Underwriter shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, an agreement substantially in the form of Exhibit A hereto, D hereto signed by each of the persons mentioned in Section 1(a)(24).
(l) Prior to the date of this Agreement, FINRA shall have confirmed in writing that it has no objection with respect to the fairness and entities listed reasonableness of the underwriting terms and arrangements.
(m) In the event that the Underwriter exercise its option provided in Exhibit B Section 2(b) hereof to purchase all or any portion of the Option Securities on any Option Closing Date that is after the Closing Date, the obligations of the Underwriter to purchase the Option Securities shall be subject to the conditions specified in the introductory paragraph of this Section 5 and to the further condition that, at the applicable Option Closing Date, the Underwriter shall have received:
(1) A certificate, dated such Option Closing Date, to the effect set forth in, and signed by the officers specified in Section 5(e) hereof except that the references in such certificate to the Closing Date shall be changed to refer to such Option Closing Date.
(2) A certificate, dated such Option Closing Date, to the effect set forth in, and signed by the officers specified in Section 5(f) hereof except that the references in such certificate to the Closing Date shall be changed to refer to such Option Closing Date.
(3) A certificate, dated such Option Closing Date, to the effect set forth in, and signed by the officers specified in Section 5(g) hereof except that the references in such certificate to the Closing Date shall be changed to refer to such Option Closing Date.
(4) The favorable opinion of Dechert in form and substance satisfactory to the Underwriter and dated such Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(b) hereof.
(5) The favorable opinion of Fried, Frank, Harris, Sxxxxxx & Jxxxxxxx LLP, counsel for the Underwriter, in form and substance satisfactory to the Underwriter and dated such Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(c) hereof.
(6) A letter from each of Ernst & Young LLP and RSM US LLP, in form and substance satisfactory to the Underwriter and dated such Option Closing Date, substantially in the same form and substance as the letters furnished to the Underwriter pursuant to Section 5(i) hereof, except that the “specified date” in the letters furnished pursuant to this paragraph shall be a date not more than three business days prior to such Option Closing Date.
(n) On the Closing Date and each Option Closing Date, counsel for the Underwriter shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, contained in this Agreement; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated and in connection with the other transactions contemplated by this Agreement shall be satisfactory in form and substance to the Underwriter.
(o) The Company If any condition specified in this Section 5 shall not have furnished been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the Underwriters a Secretary’s Certificate purchase of Option Securities on an Option Closing Date which is after the Closing Date, the obligations of the Company, in form and substance reasonably satisfactory Underwriter to counsel for purchase the Underwriters.
(p) On Option Securities may be terminated by the Underwriter by notice to the Company at any time on or prior to the Closing Date or such Option Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative case may reasonably request. All opinionsbe, lettersand such termination shall be without liability of any party to any other party except as provided in Section 4 hereof and except that, evidence in the case of any termination of this Agreement, Sections 1, 6, 7, 8 and certificates mentioned above or elsewhere 17 hereof shall survive such termination and remain in full force and effect and except that, in the case of the termination of the obligations of the Underwriter to purchase any Option Securities on an Option Closing Date which is after the Closing Date, this Agreement shall be deemed to be otherwise survive such termination and remain in compliance with the provisions hereof only if they are in form full force and substance reasonably satisfactory to counsel for the Underwriterseffect.
Appears in 2 contracts
Samples: Underwriting Agreement (Golub Capital BDC, Inc.), Underwriting Agreement (GOLUB CAPITAL BDC, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and to purchase the closing of the sale of the Stock, Securities hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) (i) The Registration Statements have become effective under the Securities ActProspectus, and no stop order suspending any supplement thereto, have been filed in the effectiveness of manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); the final term sheet contemplated by Section 5(t) hereto and any Registration Statement or any part thereof, preventing or suspending other material required to be filed by the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof Company pursuant to Rule 433(d) shall have been issued filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 and no proceedings for that purpose or pursuant to Section 8A under (ii) any request of the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebyUnderwriters.
(b) None of the Underwriters shall have discovered and disclosed Subsequent to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact whichExecution Time, in the opinion of counsel for the Underwritersor, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreementif earlier, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Registration Statement (exclusive of any amendment thereto), the Disclosure Package and the Prospectus, as the case may be, as Prospectus (exclusive of a date not more than three (3) business days prior to the date of the bring-down letterany amendment thereof), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock occurred: (other than stock option and warrant exercises and stock repurchases in the ordinary course of businessi) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, general affairsproperties, managementnet worth, or results of operations of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in the Disclosure Package and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), the effect of which, in the sole judgment of the Representatives is so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendments thereto), the Disclosure Package and the Prospectus (exclusive of any supplement thereto); or (ii) any event or development relating to or involving the Company and its subsidiaries or any officer or director of the Company and its subsidiaries which makes any statement made in the Disclosure Package or the Prospectus untrue or which, in the opinion of the Company and its counsel or the Representatives and their counsel, requires the making of any addition to or change in the Disclosure Package in order to state a material fact required by the Act or any other law to be stated therein, or necessary in order to make the statements therein not misleading, if amending or supplementing the Disclosure Package to reflect such event or development would, in the opinion of the Representatives, adversely affect the market for the Securities.
(c) The Representatives shall have received on the Closing Date opinions of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the Company, dated as of such date and addressed to the Representatives, substantially in the forms attached hereto as Exhibit A.
(d) The Representatives shall have received on the Closing Date an opinion of Hunton & Xxxxxxxx LLP, counsel for the Underwriters, dated as of such date and addressed to the Representatives with respect to such matters as the Underwriters may request.
(e) The Representatives shall have received letters addressed to the Underwriters and dated as of the date hereof and as of the Closing Date from Ernst & Young LLP, independent registered public accounting firm, substantially in the form heretofore approved by the Underwriters; provided that the letter delivered on the date hereof and on the Closing Date shall use a “cut-off” date no more than three (3) Business Days prior to such dates.
(f) (A) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Commission at or prior to the Closing Date; (B) there shall not have been any material change in the capital stock of the Company nor any material increase in the short-term or long-term debt (including any off-balance sheet activities or transactions) of the Company and its subsidiaries (other than in the ordinary course of business) from that set forth or contemplated in the Registration Statement, the Disclosure Package or the Prospectus (or any amendment or supplement thereto); (C) there shall not have been, since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), except as may otherwise be stated in the Registration Statement, the Disclosure Package and Prospectus (or any amendment or supplement thereto), any material adverse change in the condition (financial positionor other), stockholders’ equity business, prospects, properties, net worth or results of operations of the Company or its subsidiaries; (D) the Company and its subsidiaries shall not have any liabilities or obligations (financial or other), direct or contingent (whether or not in the ordinary course of business), that are material to the Company or its subsidiaries, otherwise other than as set forth those reflected in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, Registration Statement or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
Prospectus (lor any amendment or supplement thereto); and (E) The all the representations and warranties of the Company contained in this Agreement shall have filed a Notification: Listing be true and correct at and as of Additional Shares with the NASDAQ Global Market Execution Time and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence as if made at and as of such time or on and as of such date, and the good standing Representatives shall have received a certificate, dated the Closing Date and signed by either the chief executive officer or chief operating officer and the chief financial officer of the Company (or such other officers as are acceptable to the Representatives), to the effect set forth in the State of Delaware this Section 8(f) and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictionsSection 8(g) hereof.
(ng) The Representative Company shall not have received failed at or prior to the written agreementsClosing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder or under the Indenture, substantially in at or prior to the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this AgreementClosing Date.
(oh) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the 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.
(i) The Company shall have furnished or caused to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have be furnished to the Representative Representatives such further certificates and documents as the Representative may reasonably requestRepresentatives shall have requested. All such opinions, letterscertificates, evidence letters and certificates mentioned above or elsewhere in this Agreement shall be deemed to other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance reasonably satisfactory to the Representatives and their counsel. Any certificate or document signed by any officer of the Company and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by the Company to the Underwriters as to the statements made therein. If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled by the Representatives at, or at any time prior to, the Closing Date. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. With respect to the Closing Date, the documents required to be delivered by this Section 8 shall be delivered at the offices of Hunton & Xxxxxxxx LLP, Attn: Xxxxxxxxxxx X. Xxxxx, Esq., counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, X.X., Bank of America Plaza, Suite 4100, Xxxxxxx, Xxxxxxx 00000 on or prior to such date.
Appears in 2 contracts
Samples: Underwriting Agreement (National Retail Properties, Inc.), Underwriting Agreement (National Retail Properties, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time date hereof and on at each of the First Closing DateDate and the Second Closing Date (as if made at such closing date), of the representations and compliance with all representations, warranties and agreements of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective If filing of the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, is required under the Securities ActAct or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Issuer Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of any the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing or suspending the use of any Base Prospectus, any Preliminary Prospectusthe Time of Sale Disclosure Package, the Prospectus or any Permitted Issuer Free Writing Prospectus or any part thereof shall have been issued and issued; no proceedings for that purpose or pursuant to Section 8A under the Securities Act issuance of such an order shall have been initiated or, to or threatened; and any request of the Company’s knowledge, threatened by the Commission, and all requests Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or Statement, the Time of Sale Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters No Underwriter shall have discovered and disclosed to advised the Company on or prior to that (i) the Closing Date that any Registration Statement or any amendment thereof or supplement thereto contains an untrue statement of a material fact which, in the opinion of counsel for to the UnderwritersRepresentative, is material or omits to state any a material fact which, in the opinion of such counselcounsel to the Representative, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that (ii) the General Time of Sale Disclosure PackagePackage or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counselcounsel to the Representative, is material material, or omits to state any a fact which, in the opinion of such counselcounsel to the Representative, is material and is required to be stated therein, or necessary in order to make the statementsstatements therein, in the light of the circumstances in under which they were are made, not misleading.
(c) All corporate proceedings incident Except as contemplated in the Time of Sale Disclosure Package and in the Prospectus, subsequent to the authorization, form and validity respective dates as of each which information is given in the Time of this Agreement, the Stock, the Registration Statements, the General Sale Disclosure Package, each Issuer Free Writing Prospectus the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, 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 capital 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), 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 reasonably likely to result in a Material Adverse Change (whether or not arising in the ordinary course of business), that, in the judgment of the Representative, 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 the First Closing Date and the Prospectus Second Closing Date, as the case may be, there shall have been furnished to the Underwriters, the opinion of Seyfarth Xxxx LLP, counsel for the Company, dated such closing date and addressed to the Representative in substantially the form attached hereto as Exhibit B.
(e) On the First Closing Date and the transactions contemplated hereby Second Closing Date, as the case may be, there shall be reasonably satisfactory in all material respects have been furnished to the Underwriters, the opinion of Xxxxxxx Procter LLP, counsel for the Underwriters, dated such closing date and addressed to the Company Representative with respect to the formation of the Company, the validity of the Securities, the Registration Statement, the Time of Sale Disclosure Package, the Prospectus and other related matters as the Representative reasonably may request, and such counsel shall have furnished to received such counsel all documents papers and information that as they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At On the time of the execution date of this Agreement, the Representative First Closing Date and the Second Closing Date, as the case may be, the Underwriters shall have received from Ernst a letter of Deloitte & Young LLP a letterTouche LLP, dated such date and addressed to the UnderwritersRepresentative, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company public accountants within the meaning of the Securities Act and are in compliance with the Rules and Regulations and PCAOB and (ii) stating applicable requirements relating to the conclusions and findings qualifications of such firm, accountants under Rule 2-01 of Regulation S-X of the type ordinarily included in accountants’ “comfort letters” to underwritersCommission, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirmingstating, as of the date of the bring-down such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Time of Sale Disclosure Package and the Prospectus, as the case may bePackage, as of a date not prior to the date hereof or more than three (3) business five days prior to the date of the bring-down such letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, said firm with respect to the financial information and other matters covered by its letter delivered to the Representative Underwriters concurrently with the execution of this Agreement pursuant Agreement, and the effect of the letter so to paragraph (f) of this Section 6be delivered on the First Closing Date and the Second Closing Date, as the case may be, shall be to confirm the conclusions and findings set forth in such prior letter.
(hg) The Company On the First Closing Date and the Second Closing Date, as the case may be, there shall have been furnished to the Representative Underwriters, a certificate, dated such closing date and addressed to the Closing DateRepresentative, signed by the chief executive officer and by the chief financial officer of its Chief Executive Officer and its Chief Financial Officer stating that 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 officers 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 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 no proceeding for that purpose has been instituted or, to the best of their knowledge, 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 General Time of Sale Disclosure Package, any Permitted Free Writing Prospectus Package and the Prospectus Prospectus, and any amendments thereof or supplements thereto, and
(A) each part of the Registration Statement and the Prospectus, in their opinionand 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 Statements Statement, or any amendment thereof, does not contain and each amendment thereto, at the Applicable Time, as did not contain when such part of the date of this Agreement and as of the Closing Date did not include Registration Statement, or any amendment thereof, became effective, any untrue statement of a material fact and did not or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, except that such statement shall not apply to statements in or omissions from the Registration Statement, or any amendment thereof, based upon and in conformity with written information furnished to the Company by any Underwriter specifically for use therein, and the General Disclosure PackageProspectus, as of the Applicable Time amended or supplemented, does not include and as of the Closing Date, any Permitted Free Writing Prospectus 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, except that such statement shall not apply to statements in or omissions from the Prospectus, as amended or supplemented, based upon and in conformity with written information furnished to the Company by any Underwriter specifically for use therein,
(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 Closing Date, the Prospectus and each amendment or supplement thereto, as Time of the respective date thereof and as of the Closing Date, did not include Sale any untrue statement of a material fact and did not omit or omits, or omitted as of the Time of Sale, to state a any material fact necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading, except that such statement shall not apply to statements in or omissions from the Time of Sale Disclosure Package or any Individual Limited-Use Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter specifically for use therein,
(iiC) since the effective date Time of the Initial Registration Statement, Sale there has occurred no event has occurred which should have been required to be set forth in a supplement an amended or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that supplemented prospectus which has not been so set forth therein, forth,
(iiiD) subsequent to their knowledge, the respective dates as of which information is given in the Closing DateRegistration Statement, the representations Time of Sale Disclosure Package and warranties of the Company in this Agreement are true and correct and Prospectus, the Company has complied not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with all agreements and satisfied all conditions on respect to its part to be performed or satisfied hereunder at or prior to the Closing Datecapital stock, and (iv) except as disclosed in the Time of Sale Disclosure Package and in the Prospectus, there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital 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), or any material change in the short term or long term debt, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock, of the Company (other than issuances of options under the Company’s existing stock option and warrant exercises and stock repurchases plans) 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) or long-term debt except as stated in the Registration Statement, the Time of Sale Disclosure Package and in the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company is a party before or by any of its subsidiariescourt or governmental agency, authority or body, or any changearbitrator, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, which could reasonably be expected to result in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure PackageMaterial Adverse Change.
(jh) No action The Underwriters shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent received all the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesLock-Up Agreements referenced in Section 4(k).
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of such additional documents, certificates and evidence as the Company, in form and substance Representative may have reasonably satisfactory to counsel for the Underwritersrequested.
(pj) On or prior to At the First Closing Date, the Company shall have furnished submitted to NASDAQ a Notification Form: Listing of Additional Shares related to the Representative Securities.
(k) The Underwriters shall have received on the First Closing Date a certificate of the Secretary of the Company.
(l) The Underwriters shall not have received any unresolved objection from FINRA as to the fairness and reasonableness of the amount of compensation allowable or payable to the Underwriters in connection with the issuance and sale of the Securities.
(m) At the First Closing Date and the Second Closing Date, as the case may be, counsel for the Underwriters shall have been furnished with such further information, certificates and documents as the Representative it may reasonably requestrequire for the purpose of enabling it to pass upon the issuance and sale of the Securities as contemplated herein and related proceedings, or to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained, or otherwise in connection with the offering of the Securities contemplated hereby. All such opinions, letterscertificates, evidence letters and certificates other documents mentioned above or and elsewhere in this Agreement shall be deemed to will be in compliance with the provisions hereof only if they are satisfactory in form and substance reasonably satisfactory to the Representative and counsel for the Underwriters. The Company will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and other documents as the Representative shall reasonably request.
Appears in 2 contracts
Samples: Purchase Agreement (Nanosphere Inc), Purchase Agreement (Nanosphere Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time date hereof and on the Closing Date (as if made at the Closing Date), of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Registration Statements Prospectus shall have become effective under been filed with the Securities ActCommission in a timely fashion in accordance with Section 4(a) hereof; all filings (including, without limitation, the Final Term Sheet) required by Rule 424(b) or Rule 433 of the Rules and Regulations shall have been made within the time periods prescribed by such Rules, and no such filings will have been made by the Company without the consent of the Representatives (such consent not to be unreasonably withheld or delayed); no stop order suspending the effectiveness of any the Registration Statement or any part thereofamendment or supplement thereto, preventing or suspending the use of any Base Preliminary Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification of the Notes for offering or sale in any part thereof jurisdiction shall have been issued and issued; no proceedings for that purpose or pursuant to Section 8A under the Securities Act issuance of any such order shall have been initiated or, to the knowledge of the Company’s knowledge, threatened pursuant to Section 8A of the Securities Act; no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto shall have been received by the Commission, Company; and all requests any request of the Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with disclosed to the reasonable satisfaction Representatives, allowing a reasonably practicable amount of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a)to respond, and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing Company will consider and address any reasonable comments from the Representatives with the Commission; and FINRA shall have raised no objection respect to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebyany such request.
(b) None of No Underwriter shall have been advised by the Underwriters Company, or shall have discovered and disclosed to the Company on or prior to Company, that (i) the Closing Date that any Registration Statement at the Effective Time, (ii) the Preliminary Prospectus or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General Disclosure Package, any Issuer Free Writing Prospectus (each when taken together with the Disclosure Package) at the Applicable Time, or (iii) the Prospectus or any amendment or supplement thereto as of its date or the Closing Date, in any case, contains or contained an untrue statement of a material fact which, in the opinion of such counsel, is material or omits or omitted to state any material fact which, in the opinion of such counsel, is material and is required to be stated therein or necessary in order to make the statementsstatements therein (in the case of the Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any supplement, in the light of the circumstances in under which they were made, ) not misleading; provided, however, that the foregoing shall not apply to information contained in or omitted from the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein (which information is specified in Section 12 hereof).
(c) All corporate proceedings incident The Representatives shall have received from Sidley Austin LLP, counsel to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLPopinion or opinions, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and Underwriters, dated the Closing Date, Date and in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing DateRepresentatives, with respect to such the Notes, Indenture, Registration Statement, Prospectus and Disclosure Package and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) At the time of the execution of this Agreement, the Representative The Representatives shall have received from Ernst Skadden, Arps, Slate, Xxxxxxx & Young LLP a letterXxxx LLP, counsel for the Company, the opinion or opinions, and negative assurance letter addressed to the Underwriters, executed and dated such datethe Closing Date, in form and substance satisfactory to the Representative Representatives.
(ie) confirming that they are an independent registered accounting firm with respect The Representatives shall have received from Shook, Hardy & Bacon L.L.P., Missouri counsel for the Company, the opinion, addressed to the Company within Underwriters, dated the meaning of the Securities Act Closing Date, in form and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect substance satisfactory to the financial statements and certain financial information contained or incorporated by reference in Representatives.
(f) The Representatives shall have received from Xxxxxxx X. Xxxxxx, General Counsel to the Registration StatementsCompany, the General Disclosure Package opinion, addressed to the Underwriters, dated the Closing Date, in form and substance satisfactory to the ProspectusRepresentatives.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative The Representatives shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, signed by the Chairman of its the Board or the Chief Executive Officer or any Executive or Senior Vice President of the Company and its by the Chief Financial Officer stating that or the Chief Accounting Officer of the Company, or other officers of the Company satisfactory to the Representatives, 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, and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be complied with or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for any such officers purpose have been initiated or, to the knowledge of such officers, threatened; and the Commission has not notified the Company of any objection to the use of the form of Registration Statement or any post-effective amendment thereto; (iii) the signers of such certificate have carefully examined the Registration Statement, the General Preliminary Prospectus, the Disclosure PackagePackage and the Prospectus, and any Permitted Free Writing amendments or supplements thereto (including any documents incorporated or deemed to be incorporated by reference into the Preliminary Prospectus and the Prospectus Prospectus), and, in their opinion, (x) the Registration Statements and each amendment thereto, at the Applicable Time, Statement as of the date of this Agreement and as of the Closing Date Effective Date, did not include any untrue statement of a material fact and did not or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, misleading and (y) the General Disclosure Package, as of the Applicable Time Time, and the Prospectus, as of its date, did not and, on the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did do not include any untrue statement of a material fact and did not or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, ; and (iv) there no event contemplated by Section 6(h) hereof has not beenoccurred.
(h) Except as described in the Preliminary Prospectus and the Prospectus, subsequent to (i) neither the Company nor any of its subsidiaries shall have sustained, since the date of the most recent latest audited financial statements included or incorporated by reference in the General Disclosure PackagePreliminary Prospectus, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and decree or (ii) since such date there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, subsidiaries or any change, or any development involving a prospective change, in or affecting the businesscondition (financial or otherwise), general affairs, management, financial positionresults of operations, stockholders’ equity equity, properties or results of operations business of the Company or any of and its subsidiaries, otherwise than subsidiaries taken as set forth in the General Disclosure Packagea whole, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) ), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery offering of the Stock Notes on the terms and in the manner contemplated in the General Disclosure PackageProspectus.
(i) Concurrently with the execution of this Agreement, the Representatives shall have received from Ernst & Young LLP, the Company’s independent registered public accounting firm, a “comfort” letter (the “initial comfort letter”) addressed to the Representatives on behalf of the Underwriters, dated the date hereof, 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 hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Prospectus, as of a date not more than three Business Days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and (iii) other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(j) No action The Representatives shall have been taken and no lawreceived a “bring-down comfort” letter (the “bring-down comfort letter”) from Ernst & Young LLP, statutethe Company’s independent registered public accounting firm, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent addressed to the issuance or sale Representatives on behalf of the Stock or materially Underwriters, dated the Closing Date, and adversely affect or potentially materially in form and adversely affect substance satisfactory to the business or operations Representatives (i) confirming that they are an independent registered public accounting firm within the meaning of the Company or any Securities Act and are in compliance with the applicable requirements relating to the qualification of its subsidiaries; and no injunction, restraining order or order accountants under Rule 2-01 of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale Regulation S-X of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations Commission, (ii) stating, as of the Company date of the bring-down comfort letter (or, with respect to matters involving changes or any developments since the respective dates as of its subsidiarieswhich specified financial information is given in the Prospectus, as of a date not more than three Business Days prior to the date of the bring-down comfort letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial comfort letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial comfort letter.
(k) Subsequent to the execution and delivery of this Agreement Agreement, (i) no downgrading shall have occurred in the rating accorded to the debt securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization” (as that term is defined in Rule 3(a)(62) under 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.
(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 NASDAQ New York Stock Exchange or the Nasdaq Global Select Market or in the over-the-counter market, or trading in any securities of the Company or any of its subsidiaries on any exchange or in the over-the-counter market, shall have been suspended or materially limited, limited or the settlement of such trading generally shall have been materially disrupted or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a banking moratorium shall have been declared by Federal federal or state authorities or authorities; (iii) a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, services; (iiiiv) the United States shall have become engaged in hostilitieshostilities after the date hereof, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, States or there shall have been a declaration of a national emergency or war by the United States States; or (ivv) there shall have occurred such a material adverse change in general economic, political or financial conditions 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 judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery offering of the Stock Notes or on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request. All opinions, letterscertificates, evidence letters and certificates mentioned above or elsewhere documents referred to in this Agreement shall be deemed to Section 6 will be in compliance with the provisions hereof of this Agreement only if they are reasonably satisfactory in form and substance reasonably satisfactory to the Representatives and to counsel for the Underwriters. The Company will furnish to the Representatives conformed copies of such opinions, certificates, letters and documents and such additional documents or certificates reasonably requested by the Representatives or counsel for the Underwriters in such number as the Representatives will reasonably request.
Appears in 2 contracts
Samples: Underwriting Agreement (O Reilly Automotive Inc), Underwriting Agreement (O Reilly Automotive Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, Date of the representations and warranties of the Company Partnership contained herein, to the performance by the Partnership of its obligations hereunder, to the accuracy of the statements of the Company Partnership made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunderhereto, and to each of the following additional terms and conditions:
(a) The Registration Statements Prospectus shall have become effective under been timely filed with the Securities Act, Commission; any material required to be filed by the Partnership pursuant to Rule 433(d) of the Rules and Regulations shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Partnership shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of any the Registration Statement or any part thereof, thereof or preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, ; no notice pursuant to Rule 401(g)(2) of the Rules and all requests for additional information on the part Regulations shall have been received; any request of the Commission (to be included or incorporated by reference for inclusion of additional information in the Registration Statements Statement or the Prospectus or otherwise) otherwise shall have been disclosed to the Underwriters and complied with to the reasonable satisfaction of the Representativetheir satisfaction; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus Commission shall not have been filed with, notified the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no Partnership of any objection to the fairness and reasonableness use of the terms form of this Agreement or the transactions contemplated herebyRegistration Statement.
(b) None of the Underwriters shall have discovered All partnership and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material limited liability company proceedings and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings other legal matters incident to the authorization, form execution and validity delivery of each of this Agreementthe Debt Documents, the Stockauthorization, execution and filing of the Registration Statement, the Registration Statements, the General Disclosure Package, each Prospectus and any Issuer Free Writing Prospectus Prospectus, and all other legal matters relating to the Prospectus Debt Documents and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(dc) Fenwick Xxxxxx & West LLP, counsel for the Company, Xxxxxxx LLP shall have furnished to the Representative such counsel’s Underwriters its written opinion opinions, including its tax opinion, and negative assurance statementletter, each as counsel to the General Partner and the Partnership, addressed to the Underwriters and dated the Closing Date, in the form and substance reasonably satisfactory to the RepresentativeManagers and their counsel.
(ed) The Representative Underwriters shall have received from Hunton Xxxxxxx Procter Xxxxx LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the Closing Date, with respect to such the sale of the Notes and other related matters as the Underwriters may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) At the time of the execution of this Agreement, the Representative Underwriters shall have received from Ernst & Young LLP a letter (the “initial letter, addressed to the Underwriters, executed and dated such date”), in form and substance satisfactory to the Representative Managers, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered accounting firm with respect to the Company public accountants within the meaning of the Securities Act and are in compliance with the Rules applicable rules and Regulations requirements adopted by the Commission and the PCAOB and is 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 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 Time of Sale Prospectus and the Prospectus, as of a date not more than three (3) days prior to the date hereof), the conclusions and findings of such firm, of firm with respect to the type financial information and other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters, underwriters in connection with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statements, the General Disclosure Package and the Prospectusregistered public offerings.
(gf) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative Underwriters shall have received from Ernst & Young LLP a letter (the “bring-down letter”) from Ernst & Young LLP ), in form and substance satisfactory to the Managers, addressed to the Underwriters and dated the Closing Date confirmingDate, (i) confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the PCAOB and is 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 General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the its conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its the initial letter delivered to and (iii) confirming in all material respects the Representative concurrently with conclusions and findings set forth in the execution of this Agreement pursuant to paragraph (f) of this Section 6initial letter.
(hg) The Company On the Closing Date, the General Partner shall have furnished to the Representative Underwriters a certificate, dated the Closing Date, Date of its Chief Executive Officer and its Chief Financial Officer stating that that:
(i) the representations, warranties and agreements of the Partnership in this Agreement are true and correct on and as of the Closing Date, and the Partnership has complied with all the agreements contained herein and satisfied all the conditions to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) the Prospectus has been timely filed with the Commission; 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 officers, threatened by the Commission; no notice pursuant to Rule 401(g)(2) of the Rules and Regulations has been received; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise has been disclosed to the Underwriters and complied with; and the Commission has not notified the Partnership of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto;
(iii) they have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus Time of Sale Prospectus, and, in their opinion, (A) (1) the Registration Statements and each amendment thereto, at the Applicable TimeStatement, as of the Effective Date, (2) the Prospectus, as of its date and on the Closing Date, and (3) the Time of this Agreement and Sale Prospectus, as of the Closing Date Time of Sale, did not include and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact (i) solely in the case of the Registration Statement required to be stated therein or (ii) necessary to make the statements therein not misleading, and misleading (in the General Disclosure Package, as case of the Applicable Prospectus or the Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements thereinSale Prospectus, in the light of the circumstances in under which they such statements were made), not misleadingexcept, in the case of the Time of Sale Prospectus, that the price of the Notes and disclosures directly relating thereto are included in the Prospectus, and (iiB) since the effective date of the Initial Registration StatementEffective Date, no event has occurred which that should have been set forth in a supplement or amendment to the Registration StatementsStatement, the General Disclosure Package Prospectus or the any Issuer Free Writing Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and forth; and
(iv) there no event contemplated in Section 7(h) or 7(i) has occurred in respect of the Partnership Entities.
(A) The Partnership Entities (taken as a whole) shall not been, subsequent to have sustained since the date of the most recent latest audited financial statements included or incorporated by reference in the General Disclosure Package, most recent preliminary prospectus any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth or contemplated in the General Disclosure PackageTime of Sale Prospectus and the Prospectus or shall have become a party to or the subject of any litigation, court or governmental action, investigation, order or decree which is materially adverse to the Partnership Entities, taken as a whole and (iiB) since such date there shall not have been any material adverse change in the partners’ or members’ capital, capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or short-term or long-term debt of the Company or any of its subsidiariesPartnership Entities, taken as a whole, or any change, or any development involving a prospective material adverse change, in or affecting the general affairs, operations, business, general affairsprospects, capitalization, management, financial position, stockholderssecurityholders’ equity or results of operations of the Company or any of its subsidiariesPartnership Entities, taken as a whole, otherwise than as set forth or contemplated in the General Disclosure PackageTime of Sale Prospectus and the Prospectus, the effect of which, in any such case described in clause (iA) or (ii) of this paragraph (i) isB), is to make it, in the judgment of the RepresentativeManagers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of the Stock Notes being delivered on the Closing Date on the terms and in the manner contemplated in the General Disclosure PackageTime of Sale Prospectus and the Prospectus
(i) Subsequent to the execution and delivery of this Agreement, if any debt securities of the Partnership are rated by any “nationally recognized statistical rating organization,” as that term is defined in Section 3(a)(62) of the Exchange Act, (i) no downgrading shall have occurred in the rating accorded such debt securities (including the Notes) and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any securities of the Partnership.
(j) If any event shall have occurred on or prior to the Closing Date that requires the Partnership to prepare an amendment or supplement to the Prospectus, such amendment or supplement shall have been prepared, the Managers shall have been given a reasonable opportunity to comment thereon as provided in Section 5(a)(iv) hereof, and copies thereof shall have been delivered to the Managers reasonably in advance of the Closing Date.
(k) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would would, as of the Closing Date, prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesNotes; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the ProspectusNotes.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company Partnership shall have furnished to the Underwriters a Secretary’s Certificate of Managers such additional documents and certificates as the Company, in form and substance reasonably satisfactory to Managers or counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative Underwriters 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 are in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Magellan Midstream Partners, L.P.), Underwriting Agreement (Magellan Midstream Partners Lp)
Conditions of Underwriters’ Obligations. The respective obligations of Company, the several Underwriters hereunderMid-Tier Company, the MHC, the Bank and the closing of Representative agree that the issuance and the sale of the StockShares, the issuance and the sale of Securities in the Subscription Offering and the Community Offering, the issuance of the Exchange Shares and all obligations of the Underwriters hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties of the Company Company, the Mid-Tier Company, the MHC and the Bank herein contained hereinas of the date hereof and the Time of Delivery, to the accuracy of the statements of officers and directors of the Company Company, the Mid-Tier Company, the MHC and the Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company Company, the Mid-Tier Company, the MHC and the Bank of its their obligations hereunder, and to each of the following additional terms and further conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by, and in compliance with, by the Rules and Securities Act Regulations and in accordance with Section 4(a3(a) hereof (or a post-effective amendment shall have been filed and declared effective in accordance with the requirements of Rule 430A), and ; no stop order suspending the Rule 462(b) effectiveness of the Registration Statement, if anyincluding any post-effective amendment thereto, shall have become effective immediately upon its filing with been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission; and FINRA , no order suspending the Offerings or the authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have raised no objection been issued or proceedings therefor initiated or, to the fairness and reasonableness knowledge of the terms of this Agreement Company, threatened by the Commission, the FRB or the transactions contemplated herebyPennsylvania Banking Department, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) None At Time of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this AgreementDelivery, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.received:
Appears in 2 contracts
Samples: Agency Agreement (William Penn Bancorporation), Agency Agreement (William Penn Bancorporation)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, Underwriter hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the knowledge of the Company’s knowledge, threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeUnderwriter; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no unresolved objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact whichFried, in the opinion of counsel for the UnderwritersFrank, is material or omits to state any fact whichHarris, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick Xxxxxxx & West LLP, counsel for the Company, Xxxxxxxx LLP shall have furnished to the Representative Underwriter such counsel’s written opinion and negative assurance statementopinion, each as special counsel to the Company, addressed to the Underwriters Underwriter and dated the Closing Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriter and substantially as set forth on Exhibit II hereto.
(c) Xxxxx, Xxxxxx & XxXxxxxx, P.C. shall have furnished to the Underwriter such counsel’s written opinion, as regulatory counsel to the Company, addressed to the Underwriter and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter and substantially as set forth on Exhibit III hereto.
(d) Xxxxxxx Xxxx & Friedrich LLP shall have furnished to the Underwriter such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Underwriter and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter and substantially as set forth on Exhibit IV hereto.
(e) The Representative Underwriter shall have received from Xxxxxx & Xxxxxxx Procter LLP, counsel for the UnderwritersUnderwriter, such counsel’s written opinion and negative assurance statementor opinions, dated the Closing Date, with respect to such matters as the Underwriters Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative Underwriter shall have received from Ernst & Young PricewaterhouseCoopers LLP a letter, addressed to the UnderwritersUnderwriter, executed and dated such date, in form and substance satisfactory to the Representative Underwriter (i) confirming that they are an independent registered accounting firm with respect to the Company and its Subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB rules and regulations of the Public Company Accounting Oversight Board and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative Underwriter shall have received a letter (the “bring-down letter”) from Ernst & Young PricewaterhouseCoopers LLP addressed to the Underwriters Underwriter and dated the Closing Date Date, confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Registration Statements, the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Underwriter concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative Underwriter a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to best of their knowledgeknowledge after reasonable investigation, as of the Closing Date, 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 the Closing Date, Date and (ivii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, Material Adverse Change except as set forth in the Prospectus.
(i) Since the date respective dates as of which information is given in the latest audited financial statements included in Registration Statements, the General Disclosure Package or and the Prospectus (including any documents incorporated by reference in the General Disclosure Package as of the date hereoftherein), (i) the Company and its subsidiaries shall not have sustained 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, otherwise than except as set forth in the Registration Statements, the General Disclosure PackagePackage and the Prospectus, and (ii) or contemplated thereby, there shall has not have been any adverse change or any development involving a prospective change in or effecting the capital stock condition (other than stock option and warrant exercises and stock repurchases financial or otherwise), properties, assets, liabilities, operations, earnings, or business of the Company taken as a whole, whether or not arising from transactions in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) ), is, in the judgment of the RepresentativeUnderwriter, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market Exchange or the New York Stock Exchange, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such), in the case of clauses (i), (ii), (iii) and (iv) above, so as to make it, in the judgment of the RepresentativeUnderwriter, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(k) The Exchange shall have approved the Stock for listing therein, subject only to official notice of issuance.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative Underwriter shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State its jurisdiction of Delaware and existence as a foreign corporation in the State of Washingtonorganization, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities governmental authorities of such jurisdictions.
(nm) The Representative Underwriter shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons officers and entities directors of the Company listed in Exhibit B Schedule D to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pn) On or prior to the Closing Date, the Company shall have furnished to the Representative Underwriter such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the UnderwritersUnderwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Aerie Pharmaceuticals Inc), Underwriting Agreement (Aerie Pharmaceuticals Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time date hereof and on the Closing Date (as if made at the Closing Date), of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Registration Statements Prospectus shall have become effective under been filed with the Securities ActCommission in a timely fashion in accordance with Section 4(a) hereof; all filings (including, without limitation, the Final Term Sheet) required by Rule 424(b) or Rule 433 of the Rules and Regulations shall have been made within the time periods prescribed by such Rules, and no such filings will have been made without the consent of the Representatives (such consent not to be unreasonably withheld or delayed); no stop order suspending the effectiveness of any the Registration Statement or any part thereofamendment or supplement thereto, preventing or suspending the use of any Base Preliminary Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification of the Notes for offering or sale in any part thereof jurisdiction shall have been issued and issued; no proceedings for that purpose the issuance of any such order shall have been initiated or threatened pursuant to Section 8A under of the Securities Act Act; no notice of objection of the Commission to use of the Registration Statement or any post-effective amendment thereto shall have been initiated or, to received by the Company’s knowledge, threatened by ; and any request of the Commission, and all requests Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been disclosed to the Representatives and complied with to the Representatives’ reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebysatisfaction.
(b) None The Representatives shall have received a letter, dated the date of this Agreement, from Ernst & Young LLP (“E&Y”) addressed to the Underwriters, confirming that they are the independent public accountants with respect to the Company, within the meaning of the Underwriters Securities Act and the applicable published rules and regulations thereunder and to the effect that:
(i) in their opinion the financial statements and schedules of the Company, if any, examined by them and included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company, who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
(A) at the date of the latest available balance sheet read by such accountants, and at a subsequent specified date not more than three Business Days prior to the date of this Agreement, there was any change in the common stock, increase in long-term debt or decrease in consolidated net current assets or shareholders’ equity of the Company, as compared with amounts shown on the latest balance sheet included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus; or
(B) for the period from the closing date of the latest income statement included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus to the closing date of the latest available income statement read by such accountants and to a subsequent specified date not more than three Business Days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in consolidated net revenues or in the total or per-share amounts of consolidated income from continuing operations or of consolidated net income of the Company, or any increases or decreases, as the case may be, in other items specified by the Representatives;
(C) except in all cases set forth in clauses (A) and (B) above for changes, increases or decreases which the most recent Preliminary Prospectus or the Prospectus discloses have occurred or may occur or which are described in such letter; and
(iii) they have compared specified dollar amounts (or percentages derived from such dollar amounts), numerical data and other financial information contained in the most recent Preliminary Prospectus or the Prospectus (in each case to the extent that such dollar amounts, percentages, numerical data and other financial information are derived from the general accounting records of the Company and its subsidiaries, subject to the internal controls of the Company’s accounting system, or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages, numerical data and other financial information to be in agreement with such results except as otherwise specified in such letter.
(c) The Representatives shall have discovered and disclosed received a letter, addressed to the Company on or Underwriters, dated the Closing Date, from E&Y, which meets the requirements of subsection (b) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each purposes of this Agreement, the Stock, the Registration Statements, the General 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 matterssubsection.
(d) Fenwick Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries, taken as a whole, which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Notes; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) of the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on the United States, outbreak or escalation of major hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Notes.
(e) The Representatives shall have received from Shearman & West Sterling LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written an opinion and negative assurance statement10b-5 letter, each addressed to the Underwriters and Underwriters, dated the Closing Date, in form and substance reasonably satisfactory Date substantially to the Representativeeffect set forth in Exhibits B and C hereto, respectively.
(ef) The Representative Representatives shall have received from Xxxxxx X. Xxxxxxx, Vice President, Assistant Corporate Secretary and Assistant General Counsel of the Company, an opinion, addressed to the Underwriters, dated the Closing Date substantially in the form of Exhibit D hereto.
(g) The Representatives shall have received from Xxxxxxx Procter Xxxxxxx & Xxxxxxxx LLP, counsel for to the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, addressed to the Underwriters, dated the Closing DateDate and in form and substance satisfactory to the Representatives, with respect to such the Notes, Indenture, Registration Statement, Prospectus and Disclosure Package and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fh) At the time of the execution of this Agreement, the Representative The Representatives shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer the President or any Vice President and its Chief Financial Officer stating the principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, the representations and warranties of the Company in this Agreement are true and correct and correct, (ii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iii) no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for any such purpose have been initiated or threatened and (iv) there has not been, subsequent to the date dates of the most recent audited financial statements included or incorporated by reference in the General Disclosure Packagemost recent Preliminary Prospectus and the Prospectus, any there has been no material adverse change change, nor any development or event involving a prospective material adverse change, in the financial position condition, business, properties or results of operations of the Company or any of and its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as other than those set forth in or contemplated by the Prospectus.
(i) Since most recent Preliminary Prospectus and the date of the latest audited financial statements included in the General Disclosure Package Prospectus or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) certificate. The Company shall have filed a Notification: Listing of Additional Shares will furnish the Underwriters with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities such conformed copies of such jurisdictions.
(n) The Representative shall have received the written agreementsopinions, substantially in the form of Exhibit A heretocertificates, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates letters and documents as the Representative may Underwriters reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere The Representatives may in this Agreement shall be deemed to be in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for obligations of the UnderwritersUnderwriters hereunder.
Appears in 2 contracts
Samples: Underwriting Agreement (CVS HEALTH Corp), Underwriting Agreement (CVS HEALTH Corp)
Conditions of Underwriters’ Obligations. (1) The respective several obligations of the several Underwriters hereunder, to purchase and pay for the Initial Units and the closing of the sale of the StockAdditional Securities, are as provided herein, shall be subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties of the Company contained hereinherein contained, as of the date hereof and as of the Closing Date (for purposes of this Section 7, “Closing Date” shall refer to the accuracy of Closing Date for the statements of Initial Units and any Additional Closing Date, if different, for the Company made in any certificates pursuant to the provisions hereofAdditional Securities), to the performance by the Company of all of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements Canadian Prospectus shall have become effective under been filed with the Securities ActCanadian Qualifying Authorities and the U.S. Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 4 hereof; no order of any securities commission, securities regulatory authority or securities exchange in Canada to cease distribution or trading of the Units, Shares, Warrants or Warrant Shares shall have been issued, and no proceedings for such purpose shall have been instituted or, to the knowledge of the Company, threatened; no stop order suspending the effectiveness of any the Registration Statement or any part thereofpost- effective amendment thereto, and no stop order suspending or preventing or suspending the use of any Base Prospectus, any Preliminary the U.S. Pricing Prospectus, the U.S. Prospectus or any Permitted Issuer Free Writing Prospectus or any part thereof Prospectus, shall have been issued by the Commission and no proceedings for that purpose or pursuant to Section 8A under the Securities Act therefor shall have been initiated or, to the knowledge of the Company’s knowledge, threatened by the Commission, and ; all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Canadian Qualifying Authorities or the Prospectus or otherwise) Commission shall have been complied with to the Underwriters’ reasonable satisfaction of the Representativesatisfaction; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus all necessary regulatory or securities exchange approvals shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebyreceived.
(b) None of At the Closing Date, the Underwriters shall have discovered and disclosed to received the Company on or prior to written opinion of DLA Piper (Canada) LLP, Canadian counsel for the Company, dated the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for and addressed to the Underwriters, is material or omits in form and substance satisfactory to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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 misleadingUnderwriters.
(c) All corporate proceedings incident to At the authorization, form and validity of each of this AgreementClosing Date, the StockUnderwriters shall have received the written opinion and negative assurance letter of DLA Piper LLP (US), the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to United States counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance satisfactory to the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such mattersUnderwriters.
(d) Fenwick & West At the Closing Date, the Underwriters shall have received the negative assurance letter of Xxxxxxx Procter LLP, the Underwriters’ United States counsel for (together with Stikeman Elliott LLP, the “Underwriters’ Counsel”), dated the Closing Date and addressed to the Underwriters, in form and substance satisfactory to the Underwriters.
(e) At the Closing Date, the Underwriters shall have received a certificate of the President and Chief Financial Officer of the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion as to the accuracy of the representations and negative assurance statement, dated warranties of the Company set forth in Section 1 hereof as of the date hereof and as of the Closing Date, with respect as to such matters as the Underwriters may reasonably requireperformance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, and as to the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such mattersmatters set forth in subsections (a) and (i) of this Section 7.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, Agreement is executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on at the Closing Date, the Representative Underwriters shall have received a comfort letter (from PricewaterhouseCoopers LLP, the “bring-down letter”) from Ernst & Young LLP addressed to independent auditor for the Underwriters Company, in form customary for prospectus offerings of securities in Canada and dated the Closing Date confirming, as registered offerings 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 securities in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, United States dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleadingDate, respectively, and addressed to the General Disclosure PackageUnderwriters and their respective U.S. or Canadian affiliates, 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, the Underwriters shall have received a comfort letter from MNP LLP, the former independent auditor for the Company, in form customary for prospectus offerings of securities in Canada and registered offerings of securities in the United States dated as of the Applicable Time date of this Agreement and as of the Closing Date, any Permitted Free Writing Prospectus respectively, and addressed to the Underwriters and their respective U.S. or Canadian affiliates, and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel.
(h) At the time this Agreement is executed and at the Closing Date, the Underwriters shall have received comfort letters from KPMG LLP, the former independent auditor for Newstrike Brands Ltd., in form customary for prospectus offerings of securities in Canada and registered offerings of securities in the United States dated as of its the date of this Agreement and as of the Closing Date, the Prospectus respectively, and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment addressed to the Registration StatementsUnderwriters and their respective U.S. or Canadian affiliates, and in form and substance satisfactory to the General Disclosure Package or the Prospectus that has not been so set forth therein, Underwriters and Underwriters’ Counsel.
(iiii) to their knowledge, as of the Closing Date, the representations and warranties of Neither 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 the Closing Datenor any Subsidiary nor any Related Entity shall have sustained, and (iv) there has not been, subsequent to since the date of the most recent latest audited consolidated financial statements included or incorporated by reference in the General Disclosure PackagePricing Prospectuses and the Prospectuses, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained any loss or interference with its business or properties from fire, explosion, flood flood, hurricane, accident, outbreak of contagious disease (including, without limitation, matters caused by, related to or resulting from COVID-19) or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental actionproceeding, order or decree, otherwise other than as set forth in the General Disclosure PackagePricing Prospectuses and the Prospectuses (exclusive of any amendment or supplement thereto); and subsequent to the dates as of which information is given in the Registration Statement, the Pricing Prospectuses and the Prospectuses (ii) exclusive of any amendment or supplement thereto), there shall not have been any change in the share capital stock (other than stock option and warrant exercises and stock repurchases or long-term or short-term debt of the Company, any Subsidiary any Related Entity or any change or any development involving a change, whether or not arising from transactions in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, condition (financial positionor otherwise), stockholders’ equity or results of operations operations, shareholders’ equity, properties or prospects of the Company and the Subsidiaries, individually or any of its subsidiaries, otherwise than taken as set forth in the General Disclosure Packagea whole, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) above, is, in the judgment of the RepresentativeLead Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock Offering on the terms and in the manner contemplated in the General Disclosure PackagePricing Prospectuses and the Prospectuses (exclusive of any amendment or supplement thereto).
(j) No action The Underwriters shall have been taken and no law, statute, rule, regulation received a duly executed lock-up agreement from each person who is a director or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations executive officer of the Company or any of its subsidiaries; and no injunctionlisted on Schedule B hereto, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent in each case substantially in the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.form attached hereto as Annex I.
(k) Subsequent to At the execution and delivery of this Agreement there shall not have occurred any of Closing Date, the following: (i) trading in securities generally on the NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, Shares shall have been suspended or materially limited, or minimum or maximum prices or maximum range conditionally approved for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions listing on the financial markets in the United States TSX and shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock approved for listing on the terms and in the manner contemplated in the General Disclosure Package and the ProspectusNYSE, subject to notice of issuance.
(l) The Company At the Closing Date, FINRA shall not have filed a Notification: Listing raised any objection with respect to the fairness and reasonableness of Additional Shares with the NASDAQ Global Market underwriting terms and shall have received no objection thereto from arrangements for the NASDAQ Global MarketOffering.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior Prior to the Closing Date, the Company shall have furnished to the Representative Lead Underwriters satisfactory evidence of its due and valid authorization of CT Corporation System as its agent to receive service of process in the United States, and satisfactory evidence from CT Corporation System accepting its appointment as such further certificates and documents as agent.
(n) The Underwriters shall have received appropriate legal opinions of the Representative may reasonably request. All opinionsCompany’s Québec counsel addressed to the Underwriters, 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 are in form and substance reasonably satisfactory to counsel the Underwriters, dated and delivered on the date of the Canadian Price Prospectus and the Canadian Prospectus, as applicable, to the effect that, except for the financial statements of the Company (including the notes thereto and the auditors’ report thereon) included or incorporated by reference therein and certain other financial information contained or incorporated by reference in the Canadian Pricing Prospectus and the Canadian Prospectus (collectively, the “Financial Information”), the French language version of each of the Canadian Pricing Prospectus and the Canadian Prospectus (including the French language version of the documents incorporated by reference therein) is in all material respects a complete and proper translation of the English language versions thereof.
(o) The Underwriters shall have received appropriate translation opinions of PricewaterhouseCoopers LLP and MNP LLP, addressed to the Underwriters, in form and substance satisfactory to the Underwriters, dated and delivered on the date of the Canadian Prospectus, to the effect that the French language version of the Financial Information is in all material respects a complete and proper translation of the English language version thereof.
(p) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested. 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 Underwriters or to Underwriters’ Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Lead Underwriters and Underwriters’ Counsel, all obligations of the Underwriters hereunder may be cancelled by the Lead Underwriters at, or at any time prior to, the Closing Date and the obligations of the Underwriters to purchase the Additional Securities may be cancelled by the Lead 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. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (HEXO Corp.), Underwriting Agreement (HEXO Corp.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, Underwriter hereunder are subject to the accuracy, when made and as of the Applicable Time of Sale and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeUnderwriter; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters The Underwriter shall not have discovered and disclosed to the Company on or prior to the Closing Date that any the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the UnderwritersUnderwriter, is material or omits to state any fact which, in the 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 General Disclosure Package, any Issuer Free Writing Prospectus or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings action incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration StatementsWarrants, the General Warrant Shares, the Registration Statement, the Disclosure Package, each Issuer Free Writing Prospectus and the Final Prospectus and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the UnderwritersUnderwriter, and the Company shall have furnished to such counsel all Company documents and information that they it may reasonably request to enable them it to pass upon such matters.
(d) Fenwick Xxxxxx, Xxxxx & West LLP, counsel for the Company, Xxxxxxx LLP shall have furnished to the Representative Underwriter such counsel’s written opinion and a negative assurance statementletter, each as counsel to the Company, addressed to the Underwriters Underwriter and dated as of the Closing Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriter.
(e) [Reserved.]
(f) The Representative Underwriter shall have received from Xxxxxxx Procter LLPLeClairRyan, A Professional Corporation, counsel for the UnderwritersUnderwriter, such counsel’s written opinion and negative assurance statementor opinions, dated as of the Closing Date, with respect to such matters as the Underwriters Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request it requests for enabling them it to pass upon such matters.
(fg) At the time of the execution of this Agreement, the Representative Underwriter shall have received from Ernst & Young each of GT LLP and E&Y LLP, a letter, addressed to the UnderwritersUnderwriter, executed and dated such date, in form and substance satisfactory to the Representative Underwriter (iA) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, 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 StatementsStatement, the General Disclosure Package and the Final Prospectus.
(gh) On the effective date of any post-effective amendment to any the Registration Statement and on the Closing Date, the Representative Underwriter shall have received a letter (the “bring-down letter”) from Ernst & Young each of GT LLP and E&Y LLP, addressed to the Underwriters Underwriter and dated as of the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Final Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Underwriter concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 66(g).
(hi) The Company shall have furnished to the Representative Underwriter a certificate, dated as of the Closing Date, of its President and Chief Executive Officer and its Chief Financial Officer Senior Vice President, Finance stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleadingFinal Prospectus, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to best of their knowledgeknowledge after reasonable investigation, as of the Closing Date, 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 the Closing Date, and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiariesCompany, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Final Prospectus.
(ij) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases a change in number of Common Stock shares outstanding due to the ordinary course issuance of businessshares upon exercise of options or warrants) or long-term debt of the Company or any of its subsidiariesCompany, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiariesCompany, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) Section 6(j), is, in the judgment of the RepresentativeUnderwriter, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock and the Warrants on the terms and in the manner contemplated in the General Disclosure Package.
(jk) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kl) 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, NASDAQ Global Market or NASDAQ Capital Market or in the over-the-counter market, or trading in any securities the Common Stock of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or been the subject of an act of terrorism, terrorism or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the RepresentativeUnderwriter, impracticable or inadvisable to proceed with the sale or delivery of the Stock and Warrants on the terms and in the manner contemplated in the General Disclosure Package and the Final Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative NASDAQ Capital Market shall have approved the Stock and the Warrant Shares for listing therein, subject only to official notice of issuance.
(n) The Underwriter shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State its jurisdiction of Delaware incorporation and existence its good standing as a foreign corporation in such other jurisdictions as the State of WashingtonUnderwriter may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities governmental authorities of such jurisdictions.
(no) The Representative Underwriter shall have received the written agreementsLock-Up Agreements, substantially in the form of Exhibit A C hereto, of the persons and entities listed in Exhibit B Schedule III to this Agreement.
(op) The Company Underwriter shall have furnished to received on the Underwriters Closing Date a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pq) On or prior to the Closing Date, the Company shall have furnished to the Representative Underwriter such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the UnderwritersUnderwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Delcath Systems, Inc.), Underwriting Agreement (Delcath Systems, Inc.)
Conditions of Underwriters’ Obligations. The respective several obligations --------------------------------------- of the several Underwriters hereunder, and to purchase the closing of the sale of the Stock, Securities under this Agreement are subject to the accuracy, when made and as satisfaction of each of the Applicable Time and on the Closing Date, of following conditions:
(a) All the representations and warranties of the Company contained herein, to in this Agreement shall be true and correct on the accuracy Closing Date with the same force and effect as if made on and as of the statements of Closing Date.
(b) The Prospectus shall have been filed with the Company made Commission in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunderaccordance with Section 5(a), and to each of at the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and Closing Date no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, threatened commenced or shall be pending before or contemplated by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident Subsequent to the authorization, form execution and validity of each delivery of this AgreementAgreement 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 Stockdirection of the possible change, in the 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 StatementsStatement and the Prospectus, there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the General Disclosure Packagecondition, each Issuer Free Writing financial or otherwise, or in the earnings, affairs or business prospects, whether or not arising in the ordinary course of business, of the Company, (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 in the Registration Statement and Prospectus, (iii) the Company and its subsidiaries shall have no liability or obligation, direct or contingent, which is material to the Company and its subsidiaries, taken as a whole, other than those reflected in the Registration Statement and the Prospectus and (iv) on the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company Closing Date you shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and 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 form paragraphs (a), (b), (c) and substance reasonably satisfactory to the Representative(d) of this Section 8.
(e) The Representative You shall have received from Xxxxxxx Procter LLP, on the Closing Date an opinion (satisfactory to you and counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer Xxxx X. Xxxxxxxx, Xx., Esq., Senior Vice President, General Counsel and its Chief Financial Officer stating that Corporate Secretary of the Company, to the effect that:
(i) the Company and each of its Significant Subsidiaries has been duly incorporated, is validly existing as a corporation (or, in the case of Capital One Bank, as a bank chartered under the laws of Virginia, and in the case of Capital One, F.S.B., as a federal savings bank chartered under the federal laws of the United States) in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority required to carry on its business as it is currently being conducted and to own, lease and operate its properties;
(ii) the Company and each of its Significant Subsidiaries is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such officers qualification, except where the failure to be so qualified would not have carefully examined a material adverse effect on the Company and its subsidiaries, taken as a whole;
(iii) all of the outstanding shares of capital stock of, or other ownership interests in, each of the Company's Significant Subsidiaries have been duly and validly authorized and issued and are fully paid and non-assessable, and are owned of record and, to the best knowledge of such counsel, beneficially by the Company (other than directors' qualifying shares of Capital One Bank), free and clear, to the best of such counsel's knowledge, of any security interest, claim, lien, encumbrance or adverse interest of any nature;
(iv) the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company enforceable in accordance with their terms except as limited by (a) bankruptcy, insolvency or similar laws affecting creditors' rights generally and (b) equitable principles of general applicability;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) the Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms except as limited by (a) bankruptcy, insolvency or similar laws affecting creditors' rights generally and (b) equitable principles of general applicability;
(vii) the Registration Statement has become effective under the Securities Act, no stop order suspending its effectiveness has been issued and no proceedings for that purpose are, to the knowledge of such counsel, pending before or contemplated by the Commission;
(viii) the statements under the captions "Description of Notes", and "Supervision, Regulation and Other Matters", "Description of Debt Securities" in the Prospectus, as amended or supplemented, and Item 15 of Part II of the Registration Statement, insofar as such statements constitute a summary of legal matters, documents or proceedings referred to therein, fairly present the General Disclosure Packageinformation called for with respect to such legal matters, documents and proceedings;
(ix) to the best of such counsel's knowledge, neither the Company nor any of its Significant Subsidiaries is in violation of its respective charter or by-laws or in default in any material respect in the performance of any obligation, agreement or condition contained in any bond, debenture, note or other evidence of indebtedness material to the Company and its subsidiaries, taken as a whole, or in any other agreement, indenture or instrument material to the conduct of the business of the Company and its subsidiaries, taken as a whole, to which the Company or any of its Significant Subsidiaries is a party or by which it or any of its Significant Subsidiaries or their respective property is bound;
(x) the execution, delivery and performance of this Agreement, the Indenture and the Securities and compliance by the Company with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except as such may be required under the securities or Blue Sky laws of the various states) and will not conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter or by-laws of the Company or any of its subsidiaries or any material agreement, indenture or other instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective properties is bound, or materially violate or conflict with any laws, administrative regulations or rulings or court decrees applicable to the Company or any of its subsidiaries or their respective properties;
(xi) such counsel does not know of any legal or governmental proceeding pending or threatened to which the Company or any of its subsidiaries is a party or to which any of their respective property is subject which is required to be described in the Registration Statement or the Prospectus and is not so described, or of any contract or other document which is required to be described in the Registration Statement or the Prospectus or is required to be filed as an exhibit to the Registration Statement which is not described or filed as required;
(xii) to the best of such counsel's knowledge, the Company and each of its Significant Subsidiaries are in compliance in all material respects with all laws administered by applicable Bank Regulatory Authorities, other than where such failures to comply would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, and neither the Company nor any of its subsidiaries is a party to any written agreement or memorandum of understanding with, or a party to any commitment letter or similar undertaking to, or is subject to any order or directive by, or is a recipient of any extraordinary supervisory letter from, or has adopted any board resolutions at the request of, any Permitted Free Writing Prospectus Bank Regulatory Authority which restricts materially the conduct of its business, or in any manner relates to its capital adequacy (other than as described in the Prospectus), its credit policies or its management, nor have any of them been advised by any Bank Regulatory Authority that it is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such order, decree, agreement, memorandum of understanding, extraordinary supervisory letter, commitment letter or similar submission, or any such board resolutions.
(xiii) the Company and each of its subsidiaries has such permits as are necessary to own, lease and operate its respective properties that are material to the Company and its subsidiaries, taken as a whole, or to the conduct of the business in the manner described in the Prospectus; to the best of such counsel's knowledge, the Company and each of its subsidiaries has fulfilled and performed all of its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such permit, subject in each case to such qualification as may be set forth in the Prospectus; and, except as described in the Prospectus, such permits contain no restrictions that are materially burdensome to the Company and its subsidiaries, taken as a whole;
(xiv) the Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act;
(1) the Registration Statement and the Prospectus andand any supplement or amendment thereto (except for financial statements and other financial and statistical information contained therein as to which no opinion need be expressed) comply as to form in all material respects with the Securities Act, in their opinionand (2) such counsel has no reason to believe that (except for financial statements and other financial and statistical information contained therein, as aforesaid, and except for that part of the Registration Statements Statement that constitutes the Form T-1) the Registration Statement and each amendment thereto, the prospectus included therein at the Applicable Time, as of time the date of this Agreement and as of the Closing Date did not include Registration Statement became effective contained any untrue statement of a material fact and did not omit or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and or that the General Disclosure PackageProspectus, as of the Applicable Time amended or supplemented, if applicable (except for financial statements and as of the Closing Date, any Permitted Free Writing Prospectus as of its date other financial and as of the Closing Date, the Prospectus and each amendment or supplement theretostatistical information contained therein, as of the respective date thereof and as of the Closing Date, did not include aforesaid) contained any untrue statement of a material fact and did not omit or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading, . In giving such opinion with respect to the matters covered by clause (iixv) since such counsel may state that their opinion and belief are based upon their participation in the effective date preparation of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement Statement and Prospectus and any amendments or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as supplements thereto and review and discussion of the Closing Datecontents thereof, the representations and warranties of the Company in this Agreement but are true and correct and the Company has complied with all agreements and satisfied all conditions on its part to be performed without independent check or satisfied hereunder at or prior to the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, verification except as set forth in the Prospectusspecified.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Financial Corp), Underwriting Agreement (Capital One Financial Corp)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing DateDate and on each Date of Delivery (if any), of the representations and warranties of the Company Transaction Entities contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of each Transaction Entity and its obligations hereunder, and to each of the following additional terms and conditions:
(a) The If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statements Statement to be declared effective before the offering of the Shares may commence, such post-effective amendment shall have become effective not later than 5:30 P.M., New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rule 424 under the Securities Act, and Act Regulations shall have been timely made; no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated instituted or, to the Company’s knowledgeknowledge of the Transaction Entities, or the Underwriters, threatened by the Commission, and all requests any request of the Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebyUnderwriters.
(b) None Subsequent to the Effective Date of this Agreement, there shall not have occurred (i) any material adverse change in the condition, financial or otherwise, business, prospects, operations, management, consolidated financial position, net worth, stockholders' equity or results of operations of the Underwriters shall have discovered Transaction Entities and disclosed the Subsidiaries and Joint Venture Entities considered as one enterprise or on the use or value of the Properties as a whole or (ii) any event or development relating to or involving any of the Company on or prior to the Closing Date that any Registration Statement Transaction Entities, Subsidiaries, Joint Venture Entities, or any amendment partner, officer, director or supplement thereto contains an untrue trustee thereof, which makes any statement of a material fact made in the Prospectus untrue or which, in the opinion of the Transaction Entities and their counsel for or the UnderwritersUnderwriters and their counsel, is material requires the making of any addition to or omits change in the Prospectus in order to state a material fact required by the Securities Act or any fact which, in the opinion of such counsel, is material and is required other law to be stated therein or is necessary in order to make the statements therein not misleading, if amending or that the General Disclosure Package, any Issuer Free Writing Prospectus or supplementing the Prospectus to reflect such event or any amendment or supplement thereto contains an untrue statement of fact whichdevelopment would, in your opinion, adversely affect the opinion of such counsel, is material or omits to state any fact which, in market for the 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 misleadingShares.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the StockShares, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus Statement and the Prospectus Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, Xxxxxxxx Chance US LLP shall have furnished to the Representative such counsel’s Underwriters its written opinion and negative assurance statementopinion, each as counsel to the Transaction Entities, addressed to the Underwriters and dated the Closing DateDate and each Date of Delivery (if any), in form and substance reasonably satisfactory to the RepresentativeUnderwriters and counsel to the Underwriters, in the form set forth in Exhibit B hereto.
(e) Solomon and Xxxxxxxx LLP shall have furnished to the Underwriters its written opinion, as tax counsel to the Transaction Entities, addressed to the Underwriters and dated the Closing Date and each Date of Delivery (if any), in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters, to the effect that:
i. Commencing with its taxable year ended December 31, 1997, the Company was organized and has been operated in conformity with the requirements for qualification and taxation as a REIT under the Code and the proposed method of operation of the Company will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code.
ii. The Representative Operating Partnership is classified as a partnership and not as (a) an association taxable as a corporation or (b) a "publicly traded partnership" taxable as a corporation under Section 7704(a) of the Code.
iii. The statements contained in the Prospectus under the captions "Material Federal Income Tax Consequences" and "Restrictions on Ownership of Capital Stock," that describe applicable U.S. federal income tax law are correct in all material respects as of the Closing Date and each Date of Delivery (if any).
(f) The Underwriter shall have received from Xxxxx & Xxxxxxx Procter LLPL.L.P., counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the Closing DateDate and each Date of Delivery (if any), with respect to such the issuance and sale of the Shares, the Registration Statement, the Prospectus and other related matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fg) At the time of the execution of this Agreement, the Representative Underwriters shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Underwriters, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered accounting firm with respect to the Company public accountants within the meaning of the Securities Act and are in compliance with the Rules and Regulations and PCAOB applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating 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 Prospectus, as of a date not more than three business days prior to the date hereof), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, firm with respect to the financial statements information and certain financial information contained or incorporated other matters ordinarily covered by reference accountants' "comfort letters" to underwriters in connection with registered public offerings as contemplated in the Registration Statements, the General Disclosure Package and the ProspectusStatement on Auditing Standards No. 72.
(gh) On With respect to the effective date letter of any post-effective amendment Ernst & Young LLP referred to any Registration Statement in the preceding paragraph and on delivered to the Closing DateUnderwriters concurrently with the execution of this Agreement (the "initial letter"), the Representative Company shall have received furnished to the Underwriters a letter (the “"bring-down letter”") from Ernst & Young LLP of such accountants, addressed to the Underwriters and dated the Closing Date confirmingand each Date of Delivery (if any) (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, firm with respect to the financial information and other matters covered by its the initial letter delivered to and (iii) confirming in all material respects the Representative concurrently with conclusions and findings set forth in the execution of this Agreement pursuant to paragraph (f) of this Section 6initial letter.
(hi) The Company and the Operating Partnership shall have furnished to the Representative Underwriters a certificate, dated the Closing DateDate and each Date of Delivery (if any), of its, or its general partner's, Chief Executive Officer and its Chief Financial Officer stating that that:
(i) such officers The representations, warranties and agreements of the Transaction Entities in Section 1 are true and correct as of the Closing Date or the Date of Delivery (if any), as applicable; the Company has complied with all its agreements contained herein; and the conditions set forth in Sections 7(a) and (b) have been fulfilled; and
(ii) They have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus Statement and the Prospectus and, in their opinionopinion (A) as of the Effective Date, the Registration Statements Statement and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 (with respect to the Prospectus, in light of the circumstances under which they were made) not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (iiB) since the effective date of the Initial Registration Statement, Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package Statement or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action On the Closing Date and each Date of Delivery (if any), counsel for the Underwriters shall have been taken furnished with such documents and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent opinions as they may require for the purpose of enabling them to pass upon the issuance or and sale of the Stock Shares as herein contemplated and related proceedings, or materially and adversely affect or potentially materially and adversely affect in order to evidence the business or operations accuracy of any of the Company representations or warranties, or the fulfillment of any of its subsidiariesthe conditions, herein contained; and no injunction, restraining order or order of any other nature all proceedings taken by any federal or state court of competent jurisdiction shall have been issued which would prevent the Transaction Entities in connection with the issuance or and sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States Shares as herein contemplated shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(pk) On or prior to The Company and the Closing Date, the Company Operating Partnership shall have furnished or caused to the Representative be furnished to you such further certificates and documents as the Representative may Underwriters or counsel to the Underwriters shall have reasonably requestrequested. 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 are in form and substance reasonably satisfactory to counsel for the Underwriters. Any certificate or document signed by any officer of the Transaction Entities and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by the Transaction Entities to the Underwriters as to the statements made therein.
Appears in 2 contracts
Samples: Underwriting Agreement (Sl Green Realty Corp), Underwriting Agreement (Sl Green Realty Corp)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunderto purchase and pay for the Shares, and the closing of the sale of the Stockas provided herein, are subject shall be subject: (x) to the accuracy, when made and as of the Applicable Time date hereof and on the Closing Date and any later Overallotment Closing Date, as the case may be, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, herein and to the performance by the Company of its obligations hereunder; (y) in the event of the purchase of Overallotment Shares from the Selling Stockholders, the accuracy, as of the Overallotment Closing Date relating to such purchase, of the representations and warranties of the Selling Stockholders herein and to each the performance of the Selling Stockholders of their obligations hereunder and (z) to the following additional terms and conditions:
(a) The Registration Statements Statement shall have become effective under not later than 9:00 a.m., New York City time, on the Securities Actday immediately following the date of this Agreement, or such later time or date as shall be consented to in writing by you. If the filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b) and no Rule 430A of the Rules and Regulations, the Prospectus shall have been filed in the manner and within the time period required by Rule 424(b) and Rule 430A of the Rules and Regulations. No stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledgeknowledge of the Company or any Underwriter, threatened by the Commission, and all requests any request of the Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection counsel to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebyUnderwriters.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of other legal matters in connection with this Agreement, the Stockform of Registration Statement, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus Prospectus, and the transactions contemplated hereby registration, authorization, issue, sale and delivery of the Shares shall be have been reasonably satisfactory in all material respects to counsel for to the Underwriters, and the Company such counsel shall have been furnished to with such counsel all documents papers and information that as they may reasonably request 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 Fishbeino Badilloo Wagnero Xxxxxxx, counsel to the Company, dated the Closing Date or such matterslater Overallotment Closing Date, in the form attached hereto as Appendix A, addressed to the Underwriters and with reproduced copies of signed counterparts thereof for the Representative.
(d) Fenwick & West In the event of the purchase of any Overallotment Shares from the Selling Stockholders, you shall have received, in addition to the opinion described in section 8(c), the opinion of Fishbeino Badilloo Wagnero Xxxxxxx, counsel to the Selling Stockholders, dated the Overallotment Closing Date, in the form attached hereto as Appendix B.
(e) You shall have received from Proskauer Rose LLP, counsel for the CompanyUnderwriters' Counsel, shall have furnished to the Representative such counsel’s written an opinion and negative assurance statementor opinions, each addressed to the Underwriters and dated the Closing Date or on any later Overallotment Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Dateyou, with respect to such certain legal matters as the Underwriters you may reasonably require, and the Company shall have furnished to such counsel such documents as they request it may have reasonably requested for the purpose of enabling them it to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative You shall have received on the Closing Date and on any later Overallotment Closing Date, as the case may be, a letter from Ernst & Young LLP a letter, the Accountants addressed to the Company and the Underwriters, executed and dated the Closing Date or such datelater Overallotment Closing Date, in form and substance satisfactory to as the Representative (i) case may be, confirming that they are it is an independent registered accounting firm certified public accountant with respect to the Company within the meaning of the Securities Act and the Rules and Regulations thereunder and PCAOB and based upon the procedures described in its letter delivered to you concurrently with the execution of this Agreement (ii) stating herein called the conclusions and findings of such firm"Original Letter"), of the type ordinarily included in accountants’ “comfort letters” but carried out to underwriters, with respect a date not more than three days prior to the financial statements and certain financial information contained or incorporated by reference in the Registration Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectusany such later Overallotment Closing Date, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined confirming that the Registration Statement, statements and conclusions set forth in the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and Original Letter are accurate as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the such later Overallotment Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative case 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.be; and
Appears in 2 contracts
Samples: Underwriting Agreement (Educational Video Conferencing Inc), Underwriting Agreement (Educational Video Conferencing Inc)
Conditions of Underwriters’ Obligations. The respective several obligations of the several Underwriters hereunder, to purchase the Firm Shares and the closing of Additional Shares, as the sale of the Stockcase may be, on any Closing Date are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties contained herein on the part of the Company contained hereinand the Selling Shareholders on the date hereof, and at and as of any Closing Date, to the performance by the Company and each of the Selling Shareholders of its obligations hereunder, to the accuracy of the statements of the Company and the Selling Shareholders made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereof and to each of the following additional terms and conditionsconditions precedent:
(a) The Final Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5 thereof; if the Company elected to rely upon Rule 462, the Rule 462 Registration Statements Statement shall have become effective under by 10 a.m., New York City time, on the Securities Act, and date of this Agreement; no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, ; and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of The Offered Shares and the Underwriters ADSs shall have discovered been admitted for listing on the New York Stock Exchange and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein admission shall not misleading, or that the General 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 opinion of such counsel, is material or omits to state any fact which, in the 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 misleadinghave been revoked.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of Since 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 General Disclosure Package and the Final Prospectus, as the case may be, as of a date not more than three (3) business days and prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers there shall not have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiarieschange, or any change or development that, singularly or in the aggregate, would involve a material adverse change or involving a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operationscondition, business, assets or prospects of the Company and its subsidiaries taken as a wholeproperties, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, senior management, financial position, stockholdersshareholders’ equity or results of operations of the Company or any and each of its subsidiariessubsidiaries taken as a whole.
(d) On such Closing Date, otherwise than as set forth the Company shall have delivered to you on behalf of the Underwriters a certificate of the Company, signed by each of the principal executive officer and the principal financial or accounting officer of the Company, dated such Closing Date, substantially in the General Disclosure Packageform of Annex A.
(e) On such Closing Date, the effect Company shall have delivered to you on behalf of whichthe Underwriters a certificate of the General Counsel, signed by him, dated such Closing Date, substantially in the form of Annex B.
(f) On such Closing Date, each Selling Shareholder shall have delivered to you on behalf of the Underwriters a certificate of the Selling Shareholder, signed by such Selling Shareholder, dated such Closing Date, substantially in the form of Annex C.
(g) Upon the signing of this Agreement and on such Closing Date, the Company shall have caused to be delivered to you on behalf of the Underwriters a letter, dated the date of such signing in the case of the first letter and dated such Closing Date in the case of any subsequent letter, from Ernst & Young, substantially in the form of Annex D.
(h) On such case described in clause Closing Date, you shall have received opinions and/or letters, addressed to you, dated such Closing Date, of:
(i) or Liniya Prava, Russian legal advisers to the Company and the Selling Shareholders, substantially in the forms of Exhibit A and Exhibit B;
(ii) The General Counsel of this paragraph the Company, substantially in Exhibit C;
(iii) Xxxxxx & Xxxxxxx, U.S. legal advisers to the Company and the Selling Shareholders, substantially in the forms of Exhibit D, Exhibit E and Exhibit F;
(iv) VISCHER, Swiss legal advisers to [Mechel Trading A.G.], substantially in the form of Exhibit G;
(v) Voicu & Filipescu SCA, Romanian legal advisers to the Company, substantially in the form of Exhibit H;
(vi) LeBoeuf, Lamb, Xxxxxx & XxxXxx, LLP, legal advisers to the Depositary, substantially in the form of Exhibit I;
(vii) Cleary, Gottlieb, Xxxxx & Xxxxxxxx, U.S. and Russian legal advisers to the Underwriters, in form and substance satisfactory to you; and
(viii) Xxxxxx & Xxxxxx, British Virgin Islands legal advisers to Britta Investments Limited, one of the Selling Shareholders, substantially in the form of Exhibit J.
(i) isOn the relevant Closing Date, the Deposit Agreement shall be in the judgment of the Representative, so material full force and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Packageeffect.
(j) No action On such Closing Date, the Depositary shall have been taken and no law, statute, rule, regulation furnished or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale caused to be furnished to you on behalf of the Stock or materially and adversely affect or potentially materially and adversely affect Underwriters certificates satisfactory to you evidencing the business or operations deposit with it of the Offered Shares being so deposited against issuance of ADRs evidencing the ADSs to be delivered on behalf of the Company or any and the Selling Shareholders at such Closing Date, and the execution, countersignature (if applicable), issuance and delivery of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent ADRs evidencing such ADSs pursuant to the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesDeposit Agreement.
(k) Subsequent to The Company shall have obtained approval by the execution and delivery of this Agreement there shall not have occurred any FSFM of the following: (i) trading in securities generally on the NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package Russian Decision and the ProspectusADS Permission.
(l) The Company shall have filed (i) opened the accounts contemplated by the Moscow Escrow Agreements; (ii) maintained such accounts; (iii) delivered a Notification: Listing of Additional Shares with written instruction to the NASDAQ Global Market and shall have received no objection thereto Moscow Escrow Agent to transfer the proceeds from the NASDAQ Global Marketsale of the Company Firm Shares immediately on receipt to the Term Deposit Account any funds deposited into the Company Xxxxx Account; and (iv) taken no action to close the accounts contemplated by the Moscow Escrow Agreements, to amend the terms of the Moscow Escrow Agreements, otherwise to countermand in any way the instructions contemplated by this Section 8(k), or otherwise to dispose of the proceeds from the sale of the Offered Shares in any way differing from the description of such disposition in the Final Prospectus under the sections entitled “Prospectus Summary—The Offering—Escrow of proceeds and registration of placement report” and “Escrow of Proceeds and Registration of Placement Report.”
(m) The Representative Each Selling Shareholder shall have received on and as (i) procured that the External Escrow Account be opened; (ii) procured that the External Escrow Account be maintained; (iii) agreed with you that you, at the relevant Closing Date, would transfer the proceeds from the sale of the Closing Date satisfactory evidence Offered Shares or ADSs to be sold by him or it to the External Escrow Account; and (iv) taken no action to close the External Escrow Account, to amend the terms of the good standing External Escrow Agreement, otherwise to countermand in any way the instructions contemplated by this Section 8(l), or otherwise to dispose of the Company proceeds from the sale of the ADSs representing Offered Shares in any way differing from the description of such disposition in the State Final Prospectus under the sections entitled “Prospectus Summary—The Offering—Escrow of Delaware proceeds and existence as a foreign corporation in the State registration of Washington, in each case in writing or any standard form placement report” and “Escrow of telecommunication from the appropriate Governmental Authorities Proceeds and Registration of such jurisdictionsPlacement Report.”
(n) The Representative No Final Prospectus or amendment or supplement to the Registration Statement or the Final Prospectus shall have received been filed to which you object in writing and such written notice contains your objections in reasonable detail; provided that prior to such written notice, you have adequately consulted with the written agreements, substantially Company and each Selling Shareholders in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B reasonable details as to this Agreementyour objections.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the such Closing Date, the Company and each Selling Shareholder shall have furnished to you on behalf of the Representative Underwriters such further information, certificates and documents as the Representative you may reasonably request. All Each of the conditions specified in this Section 8 shall be fulfilled as provided in this Agreement as of any Closing Date, and each of the opinions, letters, evidence letters and certificates mentioned above or elsewhere in to be provided pursuant to this Agreement shall be deemed to be in compliance with the provisions hereof only if they are all material respects satisfactory in form and substance reasonably satisfactory to you and counsel for the UnderwritersUnderwriters on any Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement, Underwriting Agreement (Mechel Steel Group OAO)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and to purchase the closing of the sale of the Stock, Notes hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) (i) The Registration Statements have become effective under the Securities ActProspectus, and no stop order suspending any supplement thereto, have been filed in the effectiveness of manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); (ii) the final term sheet contemplated by Section 5(t) hereof and any Registration Statement or any part thereof, preventing or suspending other material required to be filed by the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof Company pursuant to Rule 433(d) shall have been issued filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no proceedings for that purpose or pursuant to Section 8A under (iii) any request of the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebyUnderwriters.
(b) None of the Underwriters shall have discovered and disclosed Subsequent to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact whichExecution Time, in the opinion of counsel for the Underwritersor, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreementif earlier, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Registration Statement (exclusive of any amendment thereto), the Disclosure Package and the Prospectus, as the case may be, as Prospectus (exclusive of a date not more than three (3) business days prior to the date of the bring-down letterany amendment thereof), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock occurred: (other than stock option and warrant exercises and stock repurchases in the ordinary course of businessi) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, general affairsproperties, managementnet worth, or results of operations of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in the Disclosure Package and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the Execution Time), the effect of which, in the sole judgment of the Representatives is so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement (exclusive of any amendments thereto), the Disclosure Package and the Prospectus (exclusive of any supplement thereto); or (ii) any event or development relating to or involving the Company and its subsidiaries or any officer or director of the Company and its subsidiaries which makes any statement made in the Disclosure Package or the Prospectus untrue or which, in the opinion of the Company and its counsel or the Representatives and their counsel, requires the making of any addition to or change in the Disclosure Package in order to state a material fact required by the Act or any other law to be stated therein, or necessary in order to make the statements therein not misleading, if amending or supplementing the Disclosure Package to reflect such event or development would, in the opinion of the Representatives, adversely affect the market for the Notes.
(c) The Representatives shall have received on the Closing Date opinions of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the Company, dated as of such date and addressed to the Representatives, substantially in the forms attached hereto as Exhibit A-1 and Exhibit A-2.
(d) The Representatives shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated as of such date and addressed to the Representatives with respect to such matters as the Underwriters may request.
(e) The Representatives shall have received letters addressed to the Representatives and dated as of the date hereof and as of the Closing Date from Ernst & Young LLP, independent registered public accounting firm, substantially in the form heretofore approved by the Underwriters; provided that the letters delivered on the date hereof and on the Closing Date shall use a “cut-off” date no more than three (3) Business Days prior to such dates.
(f) (A) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Commission at or prior to the Closing Date; (B) there shall not have been any material change in the capital stock of the Company nor any material increase in the short-term or long-term debt (including any off-balance sheet activities or transactions) of the Company and its subsidiaries (other than in the ordinary course of business) from that set forth or contemplated in the Registration Statement, the Disclosure Package or the Prospectus (or any amendment or supplement thereto); (C) there shall not have been, since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), except as may otherwise be stated in the Registration Statement, the Disclosure Package and Prospectus (or any amendment or supplement thereto), any material adverse change in the condition (financial positionor other), stockholders’ equity business, prospects, properties, net worth or results of operations of the Company or its subsidiaries; (D) the Company and its subsidiaries shall not have any liabilities or obligations (financial or other), direct or contingent (whether or not in the ordinary course of business), that are material to the Company or its subsidiaries, otherwise other than as set forth those reflected in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, Registration Statement or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
Prospectus (lor any amendment or supplement thereto); and (E) The all the representations and warranties of the Company contained in this Agreement shall have filed a Notification: Listing be true and correct at and as of Additional Shares with the NASDAQ Global Market Execution Time and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence as if made at and as of such time or on and as of such date, and the good standing Representatives shall have received a certificate, dated the Closing Date and signed by either the chief executive officer or chief operating officer and the chief financial officer of the Company (or such other officers as are acceptable to the Representatives), to the effect set forth in the State of Delaware this Section 8(f) and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictionsSection 8(g) hereof.
(ng) The Representative Company shall not have received failed at or prior to the written agreementsClosing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder or under the Indenture, substantially in at or prior to the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this AgreementClosing Date.
(oh) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange 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.
(i) The Company shall have furnished or caused to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have be furnished to the Representative Representatives such further certificates and documents as the Representative may reasonably requestRepresentatives shall have requested. All such opinions, letterscertificates, evidence letters and certificates mentioned above or elsewhere in this Agreement shall be deemed to other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance reasonably satisfactory to the Representatives and their counsel. Any certificate or document signed by any officer of the Company and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by the Company to the Underwriters as to the statements made therein. If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled by the Representatives at, or at any time prior to, the Closing Date. Notice of such cancellation shall be given to the Company in writing or by telephone, electronic mail or facsimile confirmed in writing. With respect to the Closing Date, the documents required to be delivered by this Section 8 shall be delivered at the offices of Xxxxxx & Xxxxxx L.L.P., Attn: Xxxxxxxxxxx X. Xxxxx, Esq., counsel for the Underwriters, at 0000 Xxxxxxxxxxxx Xxxxxx XX, Xxxxx 000 Xxxx, Xxxxxxxxxx, XX 00000, on or prior to such date.
Appears in 2 contracts
Samples: Underwriting Agreement (NNN Reit, Inc.), Underwriting Agreement (NNN Reit, Inc.)
Conditions of Underwriters’ Obligations. The respective several obligations of the several Underwriters hereunder, and to purchase the closing of the sale of the Stock, Securities under this Agreement are subject to the accuracy, when made and as satisfaction of each of the Applicable Time and on the Closing Date, of following conditions:
(a) All the representations and warranties of the Company contained herein, to in this Agreement shall be true and correct on the accuracy Closing Date with the same force and effect as if made on and as of the statements of Closing Date.
(b) The Supplemented PREP Prospectus shall have been filed with the Company made in any certificates ASC under the PREP Procedures within the applicable time period prescribed for such filing thereunder and the U.S. Supplemented Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 within the provisions hereof, to the performance applicable time period prescribed for such filing by the Company of its obligations hereunder, rules and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective regulations under the Securities ActAct and, and in each case, in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on ; no order having the part effect of ceasing or suspending the distribution of the Commission (Securities or the trading in the Securities or any other securities of the Company shall have been issued or proceedings therefore initiated or threatened by any securities commission, securities regulatory authority or stock exchange in Canada or the United States; no amendment or supplement to the Registration Statement or Prospectuses, including documents deemed to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statementtherein, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed withto which the Underwriters reasonably objected in writing; the Registration Statement and all amendments thereto, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statementor modifications thereof, if any, shall have become effective immediately upon its filing with the Commission; constitute full, true and FINRA shall have raised no objection to the fairness and reasonableness plain disclosure of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to all material facts regarding the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus Securities and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are not contain an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date did not include any untrue statement of a material fact and did not or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, ; the Prospectuses and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment all amendments or supplement supplements thereto, as of the respective date thereof and as of the Closing Dateor modifications thereof, did if any, shall not include any contain an untrue statement of a material fact and did not or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in under which they were are made, not misleading, (ii) since ; and all requests for additional information on the effective date part of the Initial Registration Statement, no event has occurred which should ASC or the Commission shall have been set forth in complied with to your reasonable satisfaction;
(c) You shall have received on the Closing Date a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of certificate dated the Closing Date, the representations and warranties signed by any two of the Company Chief Executive Officer, the President and the Chief Financial Officer of the Company, confirming the matters set forth in this Agreement are true Sections 8(a), 8(b) and correct 8(e) and stating that the Company has complied with all of the agreements and satisfied all of the conditions on its part herein contained and required to be performed complied with or satisfied hereunder at by the Company on or prior to the Closing Date.
(d) Since the respective dates as of which information is given in the U.S. Prospectus and the Canadian Prospectus, other than as set forth in the U.S. Prospectus and the Canadian Prospectus (iv) there has not been, exclusive of any amendments or supplements thereto subsequent to the date of the most recent audited financial statements included this Agreement), (i) there shall not have occurred any change or incorporated by reference in the General Disclosure Package, any material adverse development involving a prospective change in the condition, financial position or otherwise, or the business, properties, prospects, financial condition or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries Subsidiaries, taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change or any development involving a prospective change in the share capital stock (other than stock option and warrant exercises and stock repurchases or in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of Subsidiaries and (iii) neither the Company or nor any of its subsidiariesSubsidiaries shall have incurred any liability or obligation, otherwise than as set forth in the General Disclosure Packagedirect or contingent, the effect of which, in any such case described in clause (i8(d)(i), 8(d)(ii) or (ii) of this paragraph (i) is8(d)(iii), in the judgment of the Representativeyour judgment, so is material and adverse as to make and, in your judgment, acting reasonably, makes it impracticable or inadvisable to proceed with market the sale or delivery of the Stock Securities on the terms and in the manner contemplated in the General Disclosure PackageU.S. Prospectus and the Canadian Prospectus.
(ji) No action There shall not have been taken and no lawoccurred any downgrading, statutesuspension or withdrawal of, rulenor shall any notice be given of any potential or intended downgrading, regulation suspension or order shall have been enactedwithdrawal of, adopted or issued by of any governmental agency review (or body which would prevent of any potential or intended review) for a possible change that does not indicate the issuance or sale direction of the Stock possible change in, any rating of the Company, the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations any other securities of the Company or (including, without limitation, the placing of any of its subsidiaries; and no injunction, restraining order the foregoing ratings on credit watch with negative or order of any other nature developing implications or under review with an uncertain direction) by any federal or state court "nationally recognized statistical rating organization" as such term is defined for purposes of competent jurisdiction shall have been issued which would prevent Rule 436(g)(2) under the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
Securities Act, (kii) Subsequent to the execution and delivery of this Agreement there shall not have occurred any negative change, nor shall any notice have been given of any potential or intended negative change, in the outlook for any rating of the following: (i) trading in securities generally on the NASDAQ Global Market Company or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on by any such exchange or such market by the Commissionrating organization, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, and (iii) the United States no such rating organization shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 given notice that it has assigned (or is considering assigning) a lower rating to the effect of international conditions Securities than that on which the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the ProspectusSecurities were marketed.
(lf) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative You shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request. All following 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.:
Appears in 2 contracts
Samples: Underwriting Agreement (Paramount Resources LTD), Underwriting Agreement (Paramount Resources LTD)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, are Underwriter as provided herein shall be subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, continuing accuracy of the representations and warranties of the Company herein contained herein, to the accuracy as of the statements date hereof and through and including the date of termination of the Company made in any certificates pursuant to the provisions hereofoffering, to the performance by the Company of its obligations hereunderhereunder theretofore to be performed, and to each of the following additional terms and conditions:
(a) The Registration Statements Statement shall have become effective under at the Securities Acttime of any sale of Debentures hereunder, and no stop order Stop Order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to or be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebypending.
(b) None of The Company shall not have sustained after the Underwriters shall have discovered and disclosed date hereof any material loss or interference with its business from any calamity, whether or not covered by insurance, which in your reasonable judgment makes it impracticable or inadvisable to sell the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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 misleadingDebentures as contemplated hereby.
(c) All corporate proceedings incident to and related matters in connection with the organization of the Company and the registration, authorization, form issuance, sale and validity delivery of each of the Debentures, and in connection with this Agreement, the Stock, the Registration Statements, the General 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, you and the Company you shall have been furnished to with such counsel all documents papers and information that they as you may reasonably request to enable them to pass upon such mattershave requested in this connection.
(d) Fenwick & West LLP, counsel for Between the Company, shall have furnished to date hereof and the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the First Closing Date, in form there shall have been no litigation instituted or threatened against the Company and substance reasonably satisfactory to there shall have been no proceeding instituted or threatened against the RepresentativeCompany before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, operations or financial condition or income of the Company.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, and at the Representative First Closing Date, counsel for the Company shall have received from Ernst & Young LLP a letter, addressed provide to the Underwriters, executed and dated such dateUnderwriter its written opinion, in form and substance satisfactory to counsel for the Representative Underwriter, with respect to the following matters:
(i) confirming that they The matters set forth in Paragraph 2(d).
(ii) The matters set forth in Paragraph 2(e).
(iii) The matters set forth in Paragraph 2(k).
(iv) To the best of counsel's knowledge, the matters set forth in Paragraphs 2(l) and (m).
(v) To the best of counsel's knowledge, the matters set forth in paragraph 2(h).
(vi) That the Registration Statement has become effective and to the best of counsel's knowledge, the matters set forth in Paragraph 2(c).
(vii) The matters set forth in paragraph 2(b).
(viii) To the best of counsel's knowledge, there are an independent registered accounting firm no contracts, agreements, or other understandings required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not so described or filed.
(f) At the First Closing Date, Xxxxxxx X. Xxxxxx & Company shall have furnished a letter addressed to you and dated as of the date it is required to be delivered in form and substance reasonably satisfactory to you, to the effect that: (i) with respect to the Company they are, and during the period covered by their reports included in the Registration Statement and the Prospectus they were, independent public accountants within the meaning of the Securities Act and the Rules and Regulations Regulations, and PCAOB and the response to Item 509 of Regulation S-K as reflected by the Registration Statement is correct insofar as it relates to them; (ii) stating the conclusions and findings of such firmin their opinion, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements of the Company examined by them at all dates and certain financial information contained or incorporated by reference for all periods referred to in their opinion and included in the Registration StatementsStatement and Prospectus, comply in all material respects with the General Disclosure Package applicable accounting requirements of the Act and Rules and Regulations; (iii) on the basis of certain indicated procedures (but not an examination in accordance with generally accepted accounting principles), including, but not limited to, a reading of the latest available interim unaudited financial statements of the Company, whether or not appearing in the Prospectus.
, inquiries of the officers of the Company or other persons responsible for its financial and accounting matters and a reading of the minute book of the Company, nothing has come to their attention which would cause them to believe that (gA) On there has been any change in the effective date capital stock or other securities of the Company or any payment or declaration of any post-effective amendment to dividend or other distribution in respect thereof or exchange therefor from that shown on its audited balance sheets or a change in the debt of the Company from that shown or contemplated under "Capitalization" in the Registration Statement other than as set forth in or contemplated by the Registration Statement, (B) there has been any material adverse change in the financial condition of the Company except as set forth in or contemplated by the Registration Statement, or (C) the unaudited financial statements and schedules of the Company included in the Registration Statement and Prospectus do not comply in form in all material respects with the applicable accounting requirements of the Act and Rules and Regulations, or are not fairly presented in conformity with generally accepted accounting principles applied on the Closing Date, the Representative shall a consistent basis; and (iv) they have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed compared specific numerical data and financial information pertaining to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given Company set forth in the General Disclosure Package Registration Statement and the Prospectus, as which have been specified by the case may be, as of a date not more than three (3) business days Underwriter prior to the date of this Agreement, to the bring-down letter), extent that such data and information may be derived from the conclusions and findings of such firm, general accounting records of the type ordinarily included Company, and found them to be in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6agreement.
(hg) The Company shall have furnished or caused to be furnished to you a certificate by the President of the Company, dated as of the First Closing Date and at the termination of the offering, to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating effect that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, the representations and warranties of the Company in this Agreement herein are true and correct as of each such date, and the Company has complied with all the agreements and has satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to each such date; (ii) the Closing DateRegistration Statement has become effective and no order suspending the effectiveness of the Registration Statement has been issued and to the best knowledge of the signer, no proceeding for that purpose has been initiated or threatened by the Commission; and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Registration Statement and Prospectus.
(i) Since , since the respective dates as of which and the periods for which information is given in the Registration Statement and Prospectus and prior to the date of the latest audited such certificate (A) there has not been any substantial adverse change, financial statements included or otherwise, in the General Disclosure Package affairs or incorporated by reference in the General Disclosure Package as condition of the date hereof, Company or the Subsidiaries and (iB) neither the Company and its subsidiaries shall not nor the Subsidiaries have sustained incurred any loss liabilities, direct or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurancecontingent, or from entered into any labor dispute or court or governmental action, order or decreetransactions, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Intervest Corporation of New York), Underwriting Agreement (Intervest Corporation of New York)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or Statement, as amended by any amendment or supplement thereto thereto, contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the StockSecurities, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West Akerman LLP, corporate counsel for to the Company, shall have furnished to the Representative such counsel’s written opinion addressed to the Underwriters and negative assurance statementdated the Closing Date, each in form and substance reasonably satisfactory to the Representative. Xxxxxx Life Science Law P.A., special intellectual property counsel to the Company, shall have furnished to the Representative such counsel’s written opinion addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative. Xxxxx, Xxxxxx & XxXxxxxx, P.C., special regulatory counsel to the Company, shall have furnished to the Representative such counsel’s written opinion addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, shall have furnished to the Representative such counsel’s written opinion opinion, addressed to the Underwriters and negative assurance statement, dated the Closing Date, with respect in form and substance reasonably satisfactory to such matters as the Underwriters may reasonably requireRepresentative, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young Xxxxx Xxxxxxxx LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young Xxxxx Xxxxxxxx LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer or President and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at as of their respective effective dates, the Applicable Timedate of first use of the Prospectus, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth thereinProspectus, (iii) to the best of their knowledgeknowledge after reasonable investigation, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiariesCompany, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a wholeCompany, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofPackage, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiariesCompany, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiariesCompany, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) ), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock Securities on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(k) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company’s corporate credit rating or the rating accorded the Company’s debt securities 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 (other than an announcement with positive implications of a possible upgrading), the Company’s corporate credit rating or the rating of any of the Company’s debt securities.
(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 New York Stock Exchange, the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market or the NYSE Amex 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States resulting in a disruption of the securities markets or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock Securities on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lm) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Capital Market and shall have received no objection thereto from the NASDAQ Global Capital Market.
(mn) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing as foreign entities in such other jurisdictions as the State of Delaware and existence as a foreign corporation in the State of WashingtonRepresentative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(no) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons officers and entities directors listed in Exhibit B Schedule III to this Agreement.
(op) The Representative shall have received on the Closing Date a certificate of the Secretary of the Company.
(q) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Chief Financial Officer of the Company, substantially in the form and substance reasonably satisfactory to counsel for the Underwritersof Exhibit B hereto.
(pr) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Catalyst Pharmaceutical Partners, Inc.), Underwriting Agreement (Catalyst Pharmaceutical Partners, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, Date of the representations and warranties of the Company Partnership contained herein, to the performance by the Partnership of its obligations hereunder, to the accuracy of the statements of the Company Partnership made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunderhereto, and to each of the following additional terms and conditions:
(a) The Registration Statements Prospectus shall have become effective under been timely filed with the Securities Act, Commission; any material required to be filed by the Partnership pursuant to Rule 433(d) of the Rules and Regulations shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Partnership shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of any the Registration Statement or any part thereof, thereof or preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, ; no notice pursuant to Rule 401(g)(2) of the Rules and all requests for additional information on the part Regulations shall have been received; any request of the Commission (to be included or incorporated by reference for inclusion of additional information in the Registration Statements Statement or the Prospectus or otherwise) otherwise shall have been disclosed to the Underwriters and complied with to the reasonable satisfaction of the Representativetheir satisfaction; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus Commission shall not have been filed with, notified the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no Partnership of any objection to the fairness and reasonableness use of the terms form of this Agreement or the transactions contemplated herebyRegistration Statement.
(b) None of the Underwriters shall have discovered All partnership and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material limited liability company proceedings and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings other legal matters incident to the authorization, form execution and validity delivery of each of this Agreementthe Debt Documents, the Stockauthorization, execution and filing of the Registration Statement, the Registration Statements, the General Disclosure Package, each Prospectus and any Issuer Free Writing Prospectus Prospectus, and all other legal matters relating to the Prospectus Debt Documents and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(dc) Fenwick Xxxxxx & West LLP, counsel for the Company, Xxxxxxx LLP shall have furnished to the Representative such counsel’s Underwriters its written opinion opinions and negative assurance statementletter, each as counsel to the General Partner and the Partnership, addressed to the Underwriters and dated the Closing Date, in the form and substance reasonably satisfactory to the RepresentativeManagers and their counsel.
(ed) The Representative Underwriters shall have received from Xxxxxxx Procter Xxxxx LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the Closing Date, with respect to such the sale of the Notes and other related matters as the Underwriters may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) At the time of the execution of this Agreement, the Representative Underwriters shall have received from Ernst & Young LLP a letter (the “initial letter, addressed to the Underwriters, executed and dated such date”), in form and substance satisfactory to the Representative Managers, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered accounting firm with respect to the Company public accountants within the meaning of the Securities Act and are in compliance with the Rules applicable rules and Regulations requirements adopted by the Commission and the PCAOB and is 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 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 Time of Sale Prospectus and the Prospectus, as of a date not more than three (3) days prior to the date hereof), the conclusions and findings of such firm, of firm with respect to the type financial information and other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters, underwriters in connection with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statements, the General Disclosure Package and the Prospectusregistered public offerings.
(gf) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative Underwriters shall have received from Ernst & Young LLP a letter (the “bring-down letter”) from Ernst & Young LLP ), in form and substance satisfactory to the Managers, addressed to the Underwriters and dated the Closing Date confirmingDate, (i) confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the PCAOB and is 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 General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the its conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its the initial letter delivered to and (iii) confirming in all material respects the Representative concurrently with conclusions and findings set forth in the execution of this Agreement pursuant to paragraph (f) of this Section 6initial letter.
(hg) The Company On the Closing Date, the General Partner shall have furnished to the Representative Underwriters a certificate, dated the Closing Date, Date of its Chief Executive Officer and its Chief Financial Officer stating that that:
(i) the representations, warranties and agreements of the Partnership in this Agreement are true and correct on and as of the Closing Date, and the Partnership has complied with all the agreements contained herein and satisfied all the conditions to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) the Prospectus has been timely filed with the Commission; 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 officers, threatened by the Commission; no notice pursuant to Rule 401(g)(2) of the Rules and Regulations has been received; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise has been disclosed to the Underwriters and complied with; and the Commission has not notified the Partnership of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto;
(iii) they have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus Time of Sale Prospectus, and, in their opinion, (A) (1) the Registration Statements and each amendment thereto, at the Applicable TimeStatement, as of the Effective Date, (2) the Prospectus, as of its date and on the Closing Date, and (3) the Time of this Agreement and Sale Prospectus, as of the Closing Date Time of Sale, did not include and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact (i) solely in the case of the Registration Statement required to be stated therein or (ii) necessary to make the statements therein not misleading, and misleading (in the General Disclosure Package, as case of the Applicable Prospectus or the Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements thereinSale Prospectus, in the light of the circumstances in under which they such statements were made), not misleadingexcept, in the case of the Time of Sale Prospectus, that the price of the Notes and disclosures directly relating thereto are included in the Prospectus, and (iiB) since the effective date of the Initial Registration StatementEffective Date, no event has occurred which that should have been set forth in a supplement or amendment to the Registration StatementsStatement, the General Disclosure Package Prospectus or the any Issuer Free Writing Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and forth; and
(iv) there no event contemplated in Section 7(h) or 7(i) has occurred in respect of the Partnership Entities.
(A) The Partnership Entities (taken as a whole) shall not been, subsequent to have sustained since the date of the most recent latest audited financial statements included or incorporated by reference in the General Disclosure Package, most recent preliminary prospectus any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth or contemplated in the General Disclosure PackageTime of Sale Prospectus and the Prospectus or shall have become a party to or the subject of any litigation, court or governmental action, investigation, order or decree which is materially adverse to the Partnership Entities, taken as a whole and (iiB) since such date there shall not have been any material adverse change in the partners’ or members’ capital, capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or short-term or long-term debt of the Company or any of its subsidiariesPartnership Entities, taken as a whole, or any change, or any development involving a prospective material adverse change, in or affecting the general affairs, operations, business, general affairsprospects, capitalization, management, financial position, stockholderssecurityholders’ equity or results of operations of the Company or any of its subsidiariesPartnership Entities, taken as a whole, otherwise than as set forth or contemplated in the General Disclosure PackageTime of Sale Prospectus and the Prospectus, the effect of which, in any such case described in clause (iA) or (ii) of this paragraph (i) isB), is to make it, in the judgment of the RepresentativeManagers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of the Stock Notes being delivered on the Closing Date on the terms and in the manner contemplated in the General Disclosure PackageTime of Sale Prospectus and the Prospectus
(i) Subsequent to the execution and delivery of this Agreement, if any debt securities of the Partnership are rated by any “nationally recognized statistical rating organization,” as that term is defined in Section 3(a)(62) of the Exchange Act, (i) no downgrading shall have occurred in the rating accorded such debt securities (including the Notes) and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any securities of the Partnership.
(j) If any event shall have occurred on or prior to the Closing Date that requires the Partnership to prepare an amendment or supplement to the Prospectus, such amendment or supplement shall have been prepared, the Managers shall have been given a reasonable opportunity to comment thereon as provided in Section 5(a)(iv) hereof, and copies thereof shall have been delivered to the Managers reasonably in advance of the Closing Date.
(k) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would would, as of the Closing Date, prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesNotes; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the ProspectusNotes.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company Partnership shall have furnished to the Underwriters a Secretary’s Certificate of Managers such additional documents and certificates as the Company, in form and substance reasonably satisfactory to Managers or counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative Underwriters 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 are in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Magellan Midstream Partners Lp), Underwriting Agreement (Magellan Midstream Partners Lp)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, Primary Parties and the closing of Representative agree that the issuance and the sale of the Stock, Shares and the issuance and sale of Securities in the Subscription Offering and the Community Offering and all obligations of the Underwriters hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties of the Company Primary Parties herein contained hereinas of the date hereof and the Time of Delivery, to the accuracy of the statements of officers and trustees of the MHC, the officers and directors of the Mid-Ties, the Company and the Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company Primary Parties of its their obligations hereunder, and to each of the following additional terms and further conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by, and in compliance with, by the Rules and Securities Act Regulations and in accordance with Section 4(a3(a) hereof (or a post-effective amendment shall have been filed and declared effective in accordance with the requirements of Rule 430A), and ; no stop order suspending the Rule 462(b) effectiveness of the Registration Statement, if anyincluding any post-effective amendment thereto, shall have become effective immediately upon its filing with been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission; and FINRA , no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have raised no objection been issued or proceedings therefor initiated or, to the fairness and reasonableness knowledge of the terms of this Agreement Company, threatened by the Commission, or the transactions contemplated herebyFRB and no order suspending the sale of the Shares in any jurisdiction shall have been issued.
(b) None At the Time of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this AgreementDelivery, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from received:
(1) The favorable opinion, dated as of the Time of Delivery, of Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such datePrimary Parties, in form and substance satisfactory to counsel for the Underwriters, as attached hereto as Exhibit B.
(2) The favorable opinion, dated as of the Time of Delivery, of Xxxx Xxxxxx, PC, counsel for the Underwriters, as to such matters as the Representative may reasonably require.
(i3) confirming that they are an independent registered accounting firm with respect In addition to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB giving their opinions required by subsections (b)(l) and (ii) stating the conclusions and findings of such firmb)(2), respectively, of this Section, Xxxxxxx Procter LLP and Xxxx Xxxxxx, PC shall each additionally state that nothing has come to their attention that would lead them to believe that the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the Registration Statement (except for financial statements and certain financial information contained schedules and other financial, pro forma or incorporated by reference in statistical data included therein, as to which counsel need make no statement), at the Registration Statements, time it initially became effective (and at the General Disclosure Package and the Prospectus.
(g) On the effective date of time any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letterwas declared effective), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date did not include any contained an untrue statement of a material fact and did not omit or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading or that the Prospectus (except for financial statements and schedules and other financial, and pro forma or statistical data included therein, as to which counsel need make no statement), at the General Disclosure Packagetime the Registration Statement became effective, as of the Applicable date of the Prospectus or at the Time and of Delivery, or (if applicable) that the General Disclosure Package as of the Closing DateApplicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment included or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any includes an untrue statement of a material fact and did not omit or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading. In giving their opinions, Xxxxxxx Procter LLP and Xxxx Xxxxxx, PC may rely as to matters of fact on certificates of officers, directors and trustees of the Primary Parties and certificates of public officials. Xxxx Xxxxxx, PC may also rely on the opinion of Xxxxxxx Procter LLP.
(c) At the Time of Delivery referred to in Section 2 hereof, the Company, the Bank and the MHC shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the FRB Regulations, Massachusetts Banking Law and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the MHC or the Bank by the FRB, the Division or any other regulatory authority other than those which the FRB, the Division or any such other regulatory authority permit to be completed after the Offerings.
(d) At the Time of Delivery, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect, whether or not arising in the ordinary course of business, and the Representative shall have received a certificate of the Chief Executive Officer of the MHC, the Mid-Tier, the Company and the Bank and the Chief Financial Officer of the MHC, the Mid-Tier, the Company and the Bank, dated as of Time of Delivery, to the effect that (i) there has been no such Material Adverse Effect, (ii) since there shall have been no material transaction entered into by the effective MHC, the Mid-Tier, the Company or the Bank from the latest date as of which the financial condition of the Initial Mid-Tier, the Company or the Bank, as set forth in the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the Prospectus that has not been so set forth thereinordinary course of business substantially consistent with past practice, (iii) to their knowledge, as none of the Closing DatePrimary Parties shall have received from the FRB, the Division or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Representative) or that would materially and adversely affect the business, financial condition, results of operations or prospects of the Company, the MHC, the Mid-Tier and the Bank, considered as one enterprise, (iv) the representations and warranties of the Company in this Agreement Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Company has Time of Delivery, (v) each of the Primary Parties have complied with all agreements and satisfied all conditions on its their part to be performed or satisfied hereunder at or prior to the Closing DateTime of Delivery, including all agreements and conditions set forth in the Agency Agreement, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the Knowledge of the Primary Parties, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby or the Division’s approval of the Massachusetts Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Primary Parties, threatened by the FRB or the Division and no person has sought to obtain regulatory or judicial review of the action of the FRB or the Division in approving the Plan in accordance with the FRB Regulations and Massachusetts Banking Law nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application or the Division approving the Massachusetts Application, and (viii) no order suspending the Offerings or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB or the Division.
(e) At the Time of Delivery, the Representative shall have received a certificate of the Chief Executive Officer of the MHC, the Company and the Bank and the Chief Financial Officer of the MHC, the Company and the Bank, dated as of Time of Delivery, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus, the MHC Proxy Statement, the Stockholder Proxy Statement and the General Disclosure Package fairly present the financial condition and results of operations of the Company as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) there has not been, subsequent they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the date Company, the MHC and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Wolf & Company, P.C. and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Mid-Tier’s ability to record, process, summarize, and report financial data, and have identified for the Mid-Tier’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the MHC’s, the Mid-Tier’s and the Bank’s disclosure controls and procedures.
(f) As of the most recent date hereof, the Representative shall have received from Wolf & Company, P.C. a letter dated such date, in form and substance satisfactory to the Representative, to the effect that: (i) they are independent public accountants with respect to the MHC, the Mid-Tier, the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Representative and Wolf & Company, P.C. set forth in detail in such letter, nothing has come to their attention that causes them to believe that, except as set forth in such letter, (A) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the Mid-Tier or any decrease in consolidated total assets, the allowance for loan losses, total deposits or total stockholders’ equity of the Mid-Tier, in each case as compared with the amounts shown in the December 31, 2018 audited consolidated statements of financial condition presented in the Registration Statement or, (C) during the period from December 31, 2018 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in consolidated total interest and dividend income, net interest income, net interest income after provision for loan losses, income before provision for income taxes or net income of the Mid-Tier, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinion and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Representative, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter.
(g) At the Time of Delivery, the Representative shall have received from Wolf & Company, P.C. a letter dated as of the Time of Delivery, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three (3) business days prior to the Time of Delivery.
(i) At the Time of Delivery, the Securities shall have been approved for listing on the Nasdaq Stock Market.
(j) At the Time of Delivery, the Company and the Bank shall have received a letter from the Appraiser, dated as of the Time of Delivery, confirming its appraisal.
(k) At the Time of Delivery, counsel for the Underwriters shall have been 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 Securities, including the Shares, as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Representative and counsel for the Underwriters.
(l) At any time prior to the Time of Delivery, (i) there shall not have occurred any material adverse change in the financial position markets in the United States or results of operations of the Company elsewhere or any outbreak of its subsidiaries, hostilities or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained any loss or interference with its business from fire, explosion, flood escalation thereof or other calamity, whether calamity or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, crisis the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, are so material and adverse as to make it impracticable to market the Securities or inadvisable to proceed with enforce contracts, including subscriptions or orders, for the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially Securities, and adversely affect or potentially materially and adversely affect the business or operations (ii) trading generally on any of the Company NYSE MKT, the New York Stock Exchange or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Nasdaq Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) Subsequent to the execution and delivery of this Agreement there Market shall not have occurred any of the following: (i) trading in securities generally on the NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter marketbeen suspended, shall have been suspended or materially limited, or and minimum or maximum prices for trading shall not have been fixed, or maximum range ranges for prices shall for securities have been established on any such exchange or such market by the Commissionrequired, by such exchange or market any of said Exchanges or by order of the Commission or any other regulatory body or governmental authority having jurisdictionauthority, (ii) and a banking moratorium shall not have been declared by either Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the ProspectusNew York authorities.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 2 contracts
Samples: Agency Agreement (HarborOne Bancorp, Inc.), Agency Agreement (HarborOne NorthEast Bancorp, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, Date of the representations and warranties of the Company Partnership contained herein, to the performance by the Partnership of its obligations hereunder, to the accuracy of the statements of the Company Partnership made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunderhereto, and to each of the following additional terms and conditions:
(a) The Registration Statements Prospectus shall have become effective been timely filed with the Commission; any material required to be filed by the Partnership pursuant to Rule 433(d) under the Securities Act, and Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Partnership shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of any the Registration Statement or any part thereof, thereof or preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; no notice pursuant to Section 8A under Rule 401(g)(2) of the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests for additional information on the part received; any request of the Commission (to be included or incorporated by reference for inclusion of additional information in the Registration Statements Statement or the Prospectus or otherwise) otherwise shall have been disclosed to the Underwriters and complied with to the reasonable satisfaction of the Representativetheir satisfaction; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus Commission shall not have been filed with, notified the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no Partnership of any objection to the fairness and reasonableness use of the terms form of this Agreement or the transactions contemplated herebyRegistration Statement.
(b) None of the Underwriters shall have discovered All partnership and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material limited liability company proceedings and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings other legal matters incident to the authorization, form execution and validity delivery of each of this Agreementthe Debt Documents, the Stockauthorization, execution and filing of the Registration Statement, the Registration Statements, the General Disclosure Package, each Prospectus and any Issuer Free Writing Prospectus Prospectus, and all other legal matters relating to the Prospectus Debt Documents and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(dc) Fenwick Xxxxxx & West LLP, counsel for the Company, Xxxxxxx LLP shall have furnished to the Representative such counsel’s Underwriters its written opinion opinions and negative assurance statementletter, each as counsel to the General Partner and the Partnership, addressed to the Underwriters and dated the Closing Date, in the form and substance reasonably satisfactory to the RepresentativeManagers and their counsel.
(ed) The Representative Underwriters shall have received from Xxxxxxx Procter Xxxxx LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the Closing Date, with respect to such the sale of the Notes and other related matters as the Underwriters may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) At the time of the execution of this Agreement, the Representative Underwriters shall have received from Ernst & Young LLP a letter (the “initial letter, addressed to the Underwriters, executed and dated such date”), in form and substance satisfactory to the Representative Managers, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered accounting firm with respect to the Company public accountants within the meaning of the Securities Act and are in compliance with the Rules applicable rules and Regulations requirements adopted by the Commission and the PCAOB and is 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 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 Time of Sale Prospectus and the Prospectus, as of a date not more than three (3) days prior to the date hereof), the conclusions and findings of such firm, of firm with respect to the type financial information and other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters, underwriters in connection with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statements, the General Disclosure Package and the Prospectusregistered public offerings.
(gf) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative Underwriters shall have received from Ernst & Young LLP a letter (the “bring-down letter”) from Ernst & Young LLP ), in form and substance satisfactory to the Managers, addressed to the Underwriters and dated the Closing Date confirmingDate, (i) confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the PCAOB and is 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 General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the its conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its the initial letter delivered to and (iii) confirming in all material respects the Representative concurrently with conclusions and findings set forth in the execution of this Agreement pursuant to paragraph (f) of this Section 6initial letter.
(hg) The Company On the Closing Date, the General Partner shall have furnished to the Representative Underwriters a certificate, dated the Closing Date, Date of any of its Chief Executive Officer Senior Vice Presidents and its Chief Financial Officer stating that that:
(i) the representations, warranties and agreements of the Partnership in this Agreement are true and correct on and as of the Closing Date, and the Partnership has complied with all the agreements contained herein and satisfied all the conditions to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) the Prospectus has been timely filed with the Commission; 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 officers, threatened by the Commission; no notice pursuant to Rule 401(g)(2) of the Securities Act has been received; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise has been disclosed to the Underwriters and complied with; and the Commission has not notified the Partnership of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto;
(iii) they have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus Time of Sale Prospectus, and, in their opinion, (A) (1) the Registration Statements and each amendment thereto, at the Applicable TimeStatement, as of the Effective Date, (2) the Prospectus, as of its date and on the Closing Date, and (3) the Time of this Agreement and Sale Prospectus, as of the Closing Date Time of Sale, did not include and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact (i) solely in the case of the Registration Statement required to be stated therein or (ii) necessary to make the statements therein not misleading, and misleading (in the General Disclosure Package, as case of the Applicable Prospectus or the Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements thereinSale Prospectus, in the light of the circumstances in under which they such statements were made), not misleadingexcept, in the case of the Time of Sale Prospectus, that the price of the Notes and disclosures directly relating thereto are included in the Prospectus, and (iiB) since the effective date of the Initial Registration StatementEffective Date, no event has occurred which that should have been set forth in a supplement or amendment to the Registration StatementsStatement, the General Disclosure Package Prospectus or the any Issuer Free Writing Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and forth; and
(iv) there no event contemplated in Section 7(h) or 7(i) has occurred in respect of the Partnership Entities.
(A) The Partnership Entities (taken as a whole) shall not been, subsequent to have sustained since the date of the most recent latest audited financial statements included or incorporated by reference in the General Disclosure Package, most recent Preliminary Prospectus any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth or contemplated in the General Disclosure PackageTime of Sale Prospectus and the Prospectus or shall have become a party to or the subject of any litigation, court or governmental action, investigation, order or decree which is materially adverse to the Partnership Entities, taken as a whole and (iiB) since such date there shall not have been any material adverse change in the partners’ or members’ capital, capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or short-term or long-term debt of the Company or any of its subsidiariesPartnership Entities, taken as a whole, or any change, or any development involving a prospective material adverse change, in or affecting the general affairs, operations, business, general affairsprospects, capitalization, management, financial position, stockholderssecurityholders’ equity or results of operations of the Company or any of its subsidiariesPartnership Entities, taken as a whole, otherwise than as set forth or contemplated in the General Disclosure PackageTime of Sale Prospectus and the Prospectus, the effect of which, in any such case described in clause (iA) or (ii) of this paragraph (i) isB), is to make it, in the judgment of the RepresentativeManagers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of the Stock Notes being delivered on the Closing Date on the terms and in the manner contemplated in the General Disclosure PackageTime of Sale Prospectus and the Prospectus
(i) Subsequent to the execution and delivery of this Agreement, if any debt securities of the Partnership are rated by any “nationally recognized statistical rating organization,” as that term is defined in Section 3(a)(62) of the Exchange Act, (i) no downgrading shall have occurred in the rating accorded such debt securities (including the Notes) and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any securities of the Partnership.
(j) If any event shall have occurred on or prior to the Closing Date that requires the Partnership to prepare an amendment or supplement to the Prospectus, such amendment or supplement shall have been prepared, the Managers shall have been given a reasonable opportunity to comment thereon as provided in Section 5(a)(iv) hereof, and copies thereof shall have been delivered to the Managers reasonably in advance of the Closing Date.
(k) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would would, as of the Closing Date, prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesNotes; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the ProspectusNotes.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company Partnership shall have furnished to the Underwriters a Secretary’s Certificate of Managers such additional documents and certificates as the Company, in form and substance reasonably satisfactory to Managers or counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative Underwriters 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 are in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Magellan Midstream Partners Lp), Underwriting Agreement (Magellan Midstream Partners Lp)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, are hereunder shall be subject to the accuracy, when made at and (except as otherwise stated herein) as of the date hereof, at and as of the Applicable Time and on the each Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance herein by the Company and the Selling Shareholders, to compliance at and as of its obligations hereundereach Closing Date by the Company and the Selling Shareholders with their covenants and agreements herein contained and other provisions hereof to be satisfied at or prior to the Closing Dates, and to each of the following additional terms and conditions:
(a) The Registration Statements Statement shall have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledgeknowledge of the Company or the Representatives, shall be threatened by the Commission, and all requests any request for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; Representatives. Any filings of the Prospectus, or any supplement thereto, required pursuant to Rule 462(b424(b) Registration Statementor Rule 434 of the Rules and Regulations, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, made in the Commission manner and within the applicable time period prescribed for such filing by, required by Rule 424(b) and in compliance with, Rule 434 of the Rules and Regulations and in accordance with Section 4(a)Regulations, and as the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebycase may be.
(b) None The Representatives shall have been satisfied that there shall not have occurred any change, on a consolidated basis, prior to each Closing Date in the condition (financial or otherwise), properties, business, management, prospects, net worth or results of operations of the Underwriters shall have discovered Company and disclosed to its subsidiaries considered as a whole, or any change in the capital stock, short-term or long-term debt of the Company on or prior to and its subsidiaries considered as a whole, such that (i) the Closing Date that any Registration Statement or the Prospectus, or any amendment or supplement thereto thereto, contains an untrue statement of fact which, in the opinion of the Representatives, is material, or omits to state a fact which, in the opinion of counsel for the UnderwritersRepresentatives, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.or
(c) All corporate proceedings incident The Representatives shall be satisfied that no legal or governmental action, suit or proceeding affecting the Company which is material and adverse to the authorization, form and validity of each of Company or which affects or may affect the Company's or the Selling Shareholders' ability to perform their respective obligations under this Agreement, the Stock, the Registration Statements, the General 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 Agreement shall have furnished to been instituted or threatened and there shall have occurred no material adverse development in any such counsel all documents and information that they may reasonably request to enable them to pass upon such mattersexisting action, suit or proceeding.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young LLP Arthxx Xxxexxxx XXX, independent certified public accountants, a letter, addressed to dated the Underwriters, executed and dated such datedate hereof, in form and substance satisfactory to the Representative Underwriters.
(e) The Representatives shall have received from Arthxx Xxxexxxx XXX, independent certified public accountants, a letter, dated each Closing Date, to the effect that such accountants reaffirm, as of each Closing Date, and as though made on each Closing Date, the statements made in the letter furnished by such accountants pursuant to paragraph (d) of this Section 8.
(f) The Representatives shall have received from Buchxxxx Xxxersoll, counsel for the Company and the Selling Shareholders, an opinion, dated each Closing Date, addressed to the Underwriters to the effect that:
(i) confirming The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of New Jersey.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and to enter into and perform its obligations under the Underwriting Agreement.
(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 such qualification is required and in which the failure to so qualify would, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), properties, business, management, prospects, net worth or results of the Company.
(iv) Each subsidiary of the Company (excluding Intelligroup Europe Limited and Intelligroup New
(v) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus under "Capitalization"; and all of the outstanding shares of the Company's capital stock, including the shares of Stock to be sold by the Company and the Selling Shareholders pursuant to the Underwriting Agreement, have been duly authorized and validly issued and are fully paid and non-assessable.
(vi) The issuance and sale of the Stock by the Company and the sale of the Stock by the Selling Shareholders are not subject to preemptive rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company and each Selling Shareholder.
(viii) The Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by or on behalf of each Selling Shareholder.
(ix) Each Attorney-in-Fact has been duly authorized by each Selling Shareholder to deliver the Stock to be so sold by such Selling Shareholder on
(x) Immediately prior to the applicable Closing Date, to the best knowledge of such counsel after due inquiry of corporate books and records, review of certificates representing the Shares to be sold by each Selling Shareholder and review of all representations and warranties by and certificates from such Selling Shareholder, each Selling Shareholder had good and valid title to the Stock to be sold by such Selling Shareholder hereunder on such date, free and clear of all liens, encumbrances, equities and claims.
(xi) Each Selling Shareholder has full legal right, power and authority, and has obtained any approval required by law (other than as required by State securities and Blue Sky laws as to which such counsel need express no opinion), to sell, assign, transfer and deliver the Stock to be sold by such Selling Shareholder.
(xii) The Underwriters (assuming that they are an independent registered accounting firm with respect to the Company bona fide purchasers within the meaning of the Uniform Commercial Code) have acquired good and marketable title to the shares of Stock being sold by the Selling Shareholders on each Closing Date, free and clear of all liens, encumbrances, equities and claims.
(xiii) Except as described in the Prospectus, to such counsel's knowledge, there are no outstanding securities of the Company convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of capital stock of the Company and there are no outstanding or authorized options, warrants or rights of any character obligating the Company to issue any shares of its capital stock or any securities convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of such stock; and except as described in the Prospectus, to such counsel's knowledge, no holder of any securities of the Company or any other person has the right, contractual or otherwise, which has not been satisfied or effectively waived, to cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the shares of Stock or the right to have any shares of Stock or other securities of the Company included in the Registration Statement or the right, as a result of the filing of the Registration Statement, to require registration under the Securities Act of any shares of Stock or other securities of the Company.
(xv) At the time the Registration Statement became effective and on each Closing Date, the Registration Statement, the Preeffective Prospectus, the Prospectus and each amendment or supplement thereto (other than the financial statements and supporting schedules including therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations Regulations.
(xvi) The shares of Stock conform to the description thereof contained in the Prospectus, and PCAOB the form of certificate used to evidence the shares of Stock is in due and proper form and complies with all applicable statutory requirements.
(iixvii) stating Such counsel does not know of any contracts or documents required to be filed as exhibits to the conclusions Registration Statement or described in the Registration Statement or the Prospectus which are not so filed or described as required, and findings of such firmcontracts and documents as are summarized in the Registration Statement or the Prospectus are fairly summarized in all material respects.
(xviii) There is no litigation or governmental or other action, of suit, proceeding or investigation before any court or before or by any public, regulatory or governmental agency or body including, but not limited to, investigations and proceedings against the type ordinarily included in accountants’ “comfort letters” to underwriters, Company with respect to INS issues, known to such counsel to be pending or threatened against, or involving the financial statements and certain financial information contained properties or incorporated by reference business of, the Company or any of its subsidiaries which is of a character required to be disclosed in the Registration Statements, the General Disclosure Package Statement and the ProspectusProspectus which has not been properly disclosed therein.
(gxix) On the effective date No authorization, approval, consent or order of any post-effective amendment court or governmental authority or agency is required in connection with the sale of the Stock to any Registration Statement the Underwriters, except such as may be required under the Securities Act or the Rules and on Regulations or State securities law; to the Closing Datebest of such counsel's knowledge, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters execution, delivery and dated the Closing Date confirming, as performance of the date Underwriting Agreement and the consummation of the bring-down letter -42- 43 transactions contemplated herein and compliance by the Company with its obligations hereunder will not conflict with or constitute a breach of, or default (oror an event which with notice or lapse of time, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given both, would constitute a default) under, or result in the General Disclosure Package and the Prospectuscreation or imposition of any lien, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, charge or encumbrance upon any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein property or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations assets of the Company or any of its subsidiariessubsidiaries pursuant to, any indenture, mortgage, deed of trust, note agreement, or other agreement or instrument to which the Company or any change of its subsidiaries is a party or development thatby which it or any of them may be bound, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects to which any of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package properties or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt assets of the Company or any of its subsidiariessubsidiaries is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company, or any changeapplicable law, administrative regulation or any development involving a prospective changeorder, in rule or affecting the businessregulation known to such counsel of any court, general affairsregulatory body, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental administrative agency or other governmental body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent having jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of over the Company or any of its subsidiaries.
(kxx) Subsequent The statements under the captions "Description of Capital Stock," insofar as they purport to the execution and delivery of this Agreement there shall not have occurred any constitute a summary of the following: (i) trading in securities generally on the NASDAQ Global Market or trading in any securities terms of the Company on any exchange or share capital, "Certain Transactions," and "Shares Eligible for Future Sale," in the over-the-counter marketProspectus, shall have been suspended insofar as they constitute a summary of relevant matters of law, the Company's Certificate of Incorporation or materially limiteddocuments referred to therein, or minimum or maximum prices or maximum range and "Principal and Selling Shareholders" are in all material respects accurate summaries and fairly and correctly present the information called for prices shall have been established on any with respect to such exchange or such market by documents and matters; the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject descriptions of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate certain provisions of the Company, 's stock option plans contained under the caption "Management" are materially accurate; and the statements made with respect to Rule 144 under the Act set forth in form "Shares Eligible for Future Sale" are fair and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with correct statements about the provisions hereof only if they are in form described without purporting to summarize or describe all material aspects of those rules and substance reasonably satisfactory to counsel for the Underwritersregulations.
Appears in 2 contracts
Samples: Underwriting Agreement (Intelligroup Inc), Underwriting Agreement (Intelligroup Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and as to the closing Underwritten Securities to be delivered at any Date of the sale of the StockDelivery, are shall be subject to the accuracycondition that all representations and warranties and other statements of the Company and the Operating Partnership herein are, when made at and as of the Applicable Time date hereof and on the Closing Date, of the representations applicable Closing Time, true and warranties of correct, the condition that the Company contained herein, and the Operating Partnership shall have each performed all of their obligations hereunder theretofore to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunderbe performed, and to each of the following additional terms and conditions:
(a5(a) The Registration Statements Statement shall have become effective under the Securities Act, 1933 Act and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, ; and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to you and your counsel's reasonable satisfaction. A prospectus containing information relating to the reasonable satisfaction description of the Representative; Underwritten Securities and any related Underlying Securities, the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus specific method of distribution and the Prospectus similar matters shall have been filed withwithin the prescribed time period, and prior to the applicable Closing Time with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b424(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A), or, if the Company has elected to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet including the Rule 434 information shall have been filed with the Commission in accordance with Rule 424(b)(7). The rating assigned by any nationally recognized statistical rating organization to any Registration Statement and on Preferred Stock of the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, Company as of the date of the bring-down letter (or, with respect applicable Terms Agreement shall not have been lowered since such date nor shall any such rating organization have publicly announced that it has placed any Preferred Stock of the Company on what is commonly termed a "watch list" for possible downgrading. There shall not have come to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and your attention any facts that would cause you to believe that the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently together with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing applicable Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment theretoSupplement, at the Applicable Time, as time it was required to be delivered to purchasers of the date of this Agreement and as of the Closing Date did not include any Underwritten Securities, included an 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were madeexisting at such time, not misleading. 5(b) Xxxxx & Xxxxxxx L.L.P., (ii) since counsel for the effective date of the Initial Registration StatementUnderwriters, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to you such opinion or opinions, dated as of the Underwriters a Secretary’s Certificate applicable Closing Time, with respect to the incorporation of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Datethis Agreement, the Company shall have furnished to applicable Terms Agreement, the Representative such further certificates validity of the Underwritten Securities being delivered as of the applicable Closing Time, the Registration Statement, the Prospectus, and documents other related matters as the Representative you may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement such counsel shall be deemed have received such papers and information as they may reasonably request to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory enable them to counsel for the Underwriterspass upon such matters.
Appears in 2 contracts
Samples: Underwriting Agreement (Prime Retail Inc), Underwriting Agreement (Prime Retail Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the each Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a)) of this Agreement, and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; Commission and FINRA shall have raised no unresolved objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) The Underwriters shall have received on the Closing Date a certified copy of (i) the minutes or resolutions of the Board (or a duly constituted committee thereof) resolving, inter alia, to approve the execution by the Company of this Agreement, the Deposit Agreement, the Registration Statement, the ADS Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and the listing of the ADSs on the Exchange, and (ii) the minutes of a general meeting of the Company at which resolutions were passed to, inter alia, give the Board authority to allot the Ordinary Shares represented by ADSs and the Offered Securities in the form of Ordinary Shares and to disapply statutory pre-emption rights in respect of such allotment.
(c) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(cd) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the StockDeposit Agreement, the Offered Securities, the Registration StatementsStatement, the ADS Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus and the 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 to the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Tiziana Life Sciences PLC), Underwriting Agreement (Tiziana Life Sciences PLC)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the each Closing Date, of the representations and warranties of the Company and the Selling Shareholders contained herein, to the accuracy of the statements of the Company and the Selling Shareholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholders of its their obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a4(I)(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All [Intentionally Omitted]
(d) The special security agreement (“SSA”) dated April 17, 2007 by and among Global Strategies Group Holding SA, Kende Holding kft, Contego Systems LLC (as successor to Contego Systems, Inc.), GNA Holdings (as successor to Global Technology Strategies, Inc.), GNA (as successor to SFA, Inc.) and the Defense Security Service of the Department of Defense, as amended and restated to add the Company as a party, shall be acceptable to the Representative in form and substance and shall have been entered into with the Defense Security Service.
(e) The Amended and Restated Certificate of Incorporation and Amended and Restated By-Laws of the Company shall have been adopted and all other corporate proceedings and legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the 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 and the Selling Shareholders shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(df) Fenwick & West LLP, counsel for the Company, Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP shall have furnished to the Representative such counsel’s written opinion and negative assurance statementopinion, each as counsel to the Company, addressed to the Underwriters and dated the such Closing Date, in substantially the form and substance reasonably satisfactory to the Representativeset forth as Exhibit II.
(eg) Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP shall have furnished to the Representative such counsel’s written opinion, as counsel to the Selling Shareholders, addressed to the Underwriters and dated such Closing Date, in substantially the form set forth as Exhibit III.
(h) The Representative shall have received from Xxxxxxx Procter LLPDLA Piper LLP (US), counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company and the Selling Shareholders shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fi) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP PwC a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(gj) On the effective date of any post-effective amendment to any Registration Statement and on the such Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP PwC addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (fh) of this Section 6.
(hk) The Company shall have furnished to the Representative a certificate, dated the such Closing Date, of its Chief Executive Officer or President and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement their respective effective dates and as of the such Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth thereinProspectus, (iii) to their knowledgeKnowledge, as of the such Closing Date, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of and its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(il) [Intentionally Omitted]
(m) Each Selling Shareholder shall have furnished to the Representative on such Closing Date a certificate, dated the such date, signed by, or on behalf of, such Selling Shareholder stating that the representations, warranties and agreements of such Selling Shareholder contained herein are true and correct as of such Closing Date and that such Selling Shareholder has complied with all agreements contained herein to be performed by such Selling Shareholder at or prior to such Closing Date.
(n) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company and nor any of its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of and its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) m), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jo) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kp) [Intentionally Omitted]
(q) 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 NASDAQ New York Stock Exchange, Nasdaq Global Market 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lr) The Company Exchange shall have filed a Notification: Listing approved the Stock for listing therein, subject only to official notice of Additional Shares with the NASDAQ Global Market issuance and shall have received no objection thereto from the NASDAQ Global Marketevidence of satisfactory distribution.
(ms) The Representative Xxxxx shall have received on and as of the such Closing Date satisfactory evidence of the good standing of the Company company and its subsidiaries in the State their respective jurisdictions of Delaware organization and existence their good standing as a foreign corporation entities in the State of Washingtonsuch other jurisdictions as Xxxxx may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(nt) The Representative Xxxxx shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons officers, directors and entities shareholders of the Company listed in Exhibit B Schedule C to this Agreement.
(ou) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.[Intentionally Omitted]
(pv) On or prior to the such Closing Date, the Company and the Selling Shareholders shall have furnished to the Representative Xxxxx such further certificates and documents as the Representative Xxxxx 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Global Defense Technology & Systems, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the each Closing Date, of the representations and warranties of contained herein given by the Company contained hereinCompany, to Evercore LP and the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofSelling Stockholder, to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements Prospectus shall have become effective under been timely filed with the Securities Act, and Commission in accordance with Section 6(a)(i); the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, or threatened by the Commission and no notice of objection of the Commission to the Company’s knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations shall have been received; no stop order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been initiated or threatened by the Commission, ; and all requests for additional information on the part any request of the Commission (to be included or incorporated by reference for inclusion of additional information in the Registration Statements Statement or the Prospectus or otherwise) otherwise shall have been complied with or otherwise resolved to the Underwriters’ reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebysatisfaction.
(b) None of the Underwriters No Underwriter shall have discovered and disclosed to the Company been notified that or otherwise become aware that, on or prior to the Closing Date that any Date, the Registration Statement Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto thereto, contains an untrue statement of a fact which, in the opinion of Shearman & Sterling LLP, counsel for the Underwriters, is material or omits to state any a fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration StatementsStatement, the General Disclosure Package, each Prospectus and any Issuer Free Writing Prospectus Prospectus, and the Prospectus 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 and the Selling Stockholder shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick Xxxxxxx Xxxxxxx & West Xxxxxxxx LLP, as counsel for to the Company, shall have furnished to the Representative such counsel’s Underwriters its written opinion and negative assurance statement, each letter addressed to the Underwriters and dated the Closing Date, Date substantially in form the forms attached hereto as Exhibits B-1 and substance reasonably satisfactory to the RepresentativeB-2.
(e) Shearman & Sterling LLP, as counsel to the Selling Stockholder, shall have furnished to the Underwriters its written opinion addressed to the Underwriters and dated the Closing Date substantially in the forms attached hereto as Exhibit C.
(f) Iwata Godo, as Japanese counsel to the Selling Stockholder, shall have furnished to the Underwriters its written opinion and letter addressed to the Underwriters and dated the Closing Date substantially in the forms attached hereto as Exhibit D.
(g) The Representative Underwriters shall have received from Xxxxxxx Procter Shearman & Sterling LLP, counsel for the Underwriters, such counsel’s written opinion or opinions and negative assurance statementletter, dated the Closing Date, with respect to such the issuance and sale of the Stock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fh) At the time of the execution of this Agreement, the Representative Underwriters shall have received from Ernst Deloitte & Young Touche LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Underwriters, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered public accounting firm with respect to the Company within the meaning of the Securities Act and are in compliance with the Rules and Regulations and PCAOB applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating 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, of firm with respect to the type financial information and other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters, underwriters in connection with registered public offerings.
(i) With respect to the financial statements and certain financial information contained or incorporated by reference letter of Deloitte & Touche LLP referred to in the Registration Statementspreceding paragraph and delivered to the Underwriters concurrently with the execution of this Agreement (the “initial D&T letter”), the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative Company shall have received furnished to the Underwriters a letter (the “bring-down D&T letter”) from Ernst & Young LLP of such accountants, addressed to the Underwriters and dated the Closing Date confirming(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 D&T letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down D&T letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, firm with respect to the financial information and other matters covered by its the initial D&T letter delivered to and (iii) confirming in all material respects the Representative concurrently with conclusions and findings set forth in the execution of this Agreement pursuant to paragraph (f) of this Section 6initial D&T letter.
(hj) [Reserved.]
(k) [Reserved.]
(l) [Reserved.]
(m) [Reserved.]
(n) The Company shall have furnished to the Representative Underwriters a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that that:
(i) The representations, warranties and agreements in Section 1 are true and correct on and as of the Closing Date, and the Company has complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing 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 officers, threatened, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations shall have been received; and
(iii) They have carefully examined the Registration Statement, the General Prospectus and the Pricing Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, (A) (1) the Registration Statements Statement did not, as of the Effective Date (2) the Prospectus did not, as of its date and each amendment theretoon the Closing Date, at or (3) the Pricing Disclosure Package, when considered together with the price of the Stock and any disclosures directly relating thereto included on the cover page of the Prospectus, did not, as of the Applicable Time, as of the date of this Agreement and as of the Closing Date did not include contain any untrue statement of a material fact and did not or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (in the General Disclosure Package, as case of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements thereinPricing Disclosure Package, in the light of the circumstances in under which they were made, ) not misleading, misleading and (iiB) since the effective date of the Initial Registration StatementEffective Date, no event has occurred which that should have been set forth in a supplement or amendment to the Registration StatementsStatement, the General Disclosure Package Prospectus or the any Issuer Free Writing Prospectus that has not been so set forth thereinforth;
(o) The Selling Stockholder (or one or more attorneys-in-fact on behalf of the Selling Stockholder) shall have furnished to the Underwriters on the Closing Date a certificate, dated the Closing Date, signed by, or on behalf of, the Selling Stockholder (iiior the Custodian or one or more attorneys-in-fact) to their knowledgestating that the representations, warranties and agreements of the Selling Stockholder contained herein are true and correct on and as of the Closing Date, Date and that the representations and warranties of the Company in this Agreement are true and correct and the Company Selling Stockholder has complied with all of its agreements contained herein and has satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and .
(ivp) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of (i) Neither the Company or nor any of its subsidiariessubsidiaries shall have sustained, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofPricing Prospectus, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and decree or (ii) since such date there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, subsidiaries or any change, or any development involving a prospective change, in or affecting the businesscondition (financial or otherwise), general affairsresults of operations, stockholders’ equity, properties, management, financial position, stockholders’ equity business or results of operations prospects of the Company or any of and its subsidiariessubsidiaries taken as a whole, otherwise other than as set forth or contemplated in the General Disclosure PackagePricing Prospectus, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) ), is, in the judgment of the RepresentativeUnderwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of the Stock being delivered on the Closing Date on the terms and in the manner contemplated in the General Disclosure PackageProspectus.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(kq) 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 NASDAQ Global Market New York Stock Exchange or trading in any securities of the Company on any exchange or in on the over-the-counter marketNASDAQ Stock Market or the American Stock Exchange, shall have been suspended or materially limited, limited or the settlement of such trading generally shall have been materially disrupted or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesauthorities, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, 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 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 judgment of the RepresentativeUnderwriters, impracticable or inadvisable to proceed with the sale public offering or delivery of the Stock being delivered on the Closing Date on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lr) The Company New York Stock Exchange shall have filed a Notification: Listing approved the Stock for listing, subject only to official notice of Additional Shares with the NASDAQ Global Market issuance and shall have received no objection thereto from the NASDAQ Global Marketevidence of satisfactory distribution.
(ms) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to Lock-Up Agreements among the Underwriters a Secretary’s Certificate and the officers, directors and stockholders of the Company, and each other person, set forth on Schedule 4, delivered to the Underwriters on or before the date of this Agreement, shall be in form full force and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to effect on the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunderto purchase and pay for the Firm Shares as provided herein on the First Closing Date and, and with respect to the closing of Option Shares, the sale of the StockOption Closing Date, are shall be subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties on the part of the Company contained hereinset forth in Section 1 hereof as of the date hereof and as of the First Closing Date as though then made and, with respect to the Option Shares, as of the Option Closing Date as though then made, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the timely performance by the Company of its their respective covenants and obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements Statement shall have become effective under prior to the Securities Actexecution of this Agreement, and or at such later date as shall be consented to in writing by the Underwriters; no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledgeKnowledge of the Company or any Underwriter, threatened by the Commission, and all requests ; any request of the Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or Statement, any Preliminary Prospectus, any Pricing Prospectus, the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeUnderwriters’ Counsel; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA NASD shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements; and no amendment to the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, or the Prospectus to which the Underwriters or the Underwriters’ Counsel shall have reasonably objected, after having received reasonable notice of this Agreement or a proposal to file the same, shall have been filed; and the NASDAQ shall not have required a vote of stockholders of the Company in connection with the consummation of the transactions contemplated herebyby this Agreement.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of other legal matters in connection with this Agreement, the Stockform of Registration Statement, the Registration Statementsany Preliminary Prospectus, the General Disclosure Packageany Pricing Prospectus, each Issuer Free Writing Prospectus and the Prospectus and the transactions contemplated hereby registration, authorization, issue, sale and delivery of the Shares, shall be have been reasonably satisfactory in all material respects to counsel for the Underwriters’ Counsel, and the Company such counsel shall have been furnished to with such counsel all documents papers and information that as they may reasonably request have requested to enable them to pass upon such mattersthe matters referred to in this Section 7.
(c) Subsequent to the execution and delivery of this Agreement and prior to the First Closing Date, and on the Option Closing Date, as the case may be, 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, taken as a whole, from that set forth in the Pricing Disclosure Package that, in the sole judgment of Xxxxxxxx Curhan Ford & Co., is material and adverse and that makes it, in the sole judgment of Xxxxxxxx Curhan Ford & Co., impracticable or inadvisable to market the Shares on the terms and in the manner contemplated in the Pricing Disclosure Package.
(d) Fenwick & West At the First Closing Date and on the Option Closing Date, as the case may be, the Underwriters shall have received from Xxxxxx Xxxxxx LLP, counsel for the CompanyCompany (“Company Counsel”), shall have furnished to the Representative a signed opinion dated as of such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, reasonably satisfactory to the Underwriters’ Counsel, in the form and substance of Exhibit B annexed hereto, including a signed negative assurance statement dated as of such Closing Date, reasonably satisfactory to the Underwriters’ Counsel, in the form and substance reflected in Exhibit B.
(e) At the First Closing Date, and on the Option Closing Date, as the case may be, the Underwriters shall have received from Underwriters’ Counsel a signed opinion dated as of such Closing Date in a form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time The Underwriters shall have received, on each of the execution of this Agreementdate hereof and the Closing Date, a letter dated the Representative shall have received from Ernst & Young LLP a letterdate hereof or the Closing Date, addressed to as the Underwriters, executed and dated such datecase may be, in form and substance satisfactory to the Representative (i) confirming that they are an Underwriters, from Odenberg Ullakko Muranishi & Co. LLP, independent registered accounting firm with respect to the Company within the meaning of the Securities Act public accountants, containing statements and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 StatementsStatement, the General Disclosure Package any Preliminary Prospectus, any Pricing Prospectus, and the Prospectus; provided, however, that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than two business days before the Closing Date.
(g) On The Underwriters shall have received, on each of the effective date of any post-effective amendment to any Registration Statement hereof and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the date hereof or the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the ProspectusDate, as the case may be, as of a date not more than three (3) business days prior in form and substance satisfactory to the date of the bring-down letter)Underwriters, the conclusions from Ernst & Young LLP, independent public accountants, containing statements and findings of such firm, information of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information certain Company acquisitions, as discussed in the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, and other matters covered by its the Prospectus; provided that the letter delivered to on the Representative concurrently with Closing Date shall use a “cut-off date” not earlier than two business days before the execution of this Agreement pursuant to paragraph (f) of this Section 6Closing Date.
(h) The Company Underwriters shall have furnished to received on the Representative First Closing Date and on the Option Closing Date, as the case may be, a certificatecertificate of the Company, dated the First Closing Date or the Option Closing Date, of its as the case may be, signed by the Chief Executive Officer and its Chief Financial Officer stating that of the Company, to the effect that, and Xxxxxxxx Curhan Ford & Co. shall be satisfied that:
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the First Closing Date or the Option Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the First Closing Date or the Option Closing Date, as the case may be;
(ii) When the Registration Statement became effective and at all times subsequent thereto up to the delivery of such officers have carefully examined certificate, the Registration Statement, the General Disclosure Package, any Permitted Free Writing Pricing Prospectus and the Prospectus andProspectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in their opinionall material respects conformed to the requirements of the Act and the applicable rules and regulations thereunder, the Registration Statements Statement, any Preliminary Prospectus, any Pricing Prospectus, and each amendment the Prospectus, and any amendments or supplements thereto, at the Applicable Time, as of the date of this Agreement did not and as of the Closing Date did does not include any untrue statement of a material fact and did not or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading; and, (ii) since the effective date of the Initial Registration Statement, there has occurred no event has occurred which should have been required to be set forth in a supplement an amended or amendment to the Registration Statements, the General Disclosure Package or the supplemented Prospectus that which has not been so set forth therein, forth; and
(iii) Subsequent to their knowledge, the respective dates as of which information is given in the Closing DateRegistration Statement, the representations and warranties of the Company in this Agreement are true and correct any Preliminary Prospectus, any Pricing Prospectus, 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 the Closing DateProspectus, and (iv) there has not beenbeen or occurred, subsequent as the case may be: (A) any Material Adverse Effect; (B) any transaction that is material to the date of the most recent audited financial statements included or incorporated by reference Company, except transactions entered into in the General Disclosure Packageordinary course of business; (C) any obligation, any direct or contingent, that is material adverse change to the Company, incurred by the Company, except obligations incurred in the financial position or results ordinary course of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition business; (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(iD) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt outstanding indebtedness of the Company that is material to the Company; (E) any dividend or distribution of any kind declared, paid or made on the capital stock of its subsidiaries, the Company; or (F) any change, loss or any development involving a prospective change, in damage (whether or affecting not insured) to the business, general affairs, management, financial position, stockholders’ equity or results of operations property of the Company which has been sustained or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Packagewill have been sustained which has a Material Adverse Effect.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with obtained and delivered to the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreementsUnderwriters an agreement, substantially in the form of Exhibit A attached hereto, from each officer and director of the persons Company. All of the certificates representing the Shares shall have been tendered for delivery in accordance with the terms and entities listed in Exhibit B to provisions of this Agreement.
(oj) The Shares shall be listed on the NASDAQ Global Market, subject only to official notice of issuance.
(k) The Company shall have furnished complied with the provisions of this Agreement with respect to the Underwriters a Secretary’s Certificate furnishing of the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersProspectuses.
(pl) On or before each of the First Closing Date and the Option Closing Date, as the case may be, the Underwriters and Underwriters’ Counsel shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. If any condition specified in this Section 7 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Underwriters by written notice to the Company at any time on or prior to the First Closing Date and, with respect to the Option Shares, at any time prior to the Option Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement which termination shall be deemed without liability on the part of any party to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel any other party, except for the Underwritersexpenses described in Section 11 of this Agreement.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunderto purchase and pay for the shares of Preferred Stock as provided herein on the Closing Date and, and with respect to the closing of Option Shares, the sale of the StockOption Closing Date, are subject to the accuracyaccuracy of the Company's representations and warranties set forth in Section 1 hereof, when made and as of the Applicable Time date hereof and on at the Closing Date (as if made at the Closing Date) and, with respect to the Option Shares, as of the representations and warranties of Option Closing Date (as if made at the Company contained hereinOption Closing Date), to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements Statement shall have become effective under prior to the Securities Actexecution of this Agreement or at such later time and date as the Representatives shall have approved in writing, and all filings required by Rules 424, 430A and 434 of the Rules and Regulations shall have been timely made; no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part amendment thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act issuance of such an order shall have been initiated or, to the Company’s knowledgeknowledge of the Company or any Representative, threatened by threatened; any request of the Commission, and all requests Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the Representatives' reasonable satisfaction of the Representativesatisfaction; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA NASD shall have raised no objection to the fairness and reasonableness of the underwriting terms of this Agreement or the transactions contemplated herebyand arrangements.
(b) None of the Underwriters The Representatives shall not have discovered and disclosed to advised the Company on or prior to that the Closing Date that any Registration Statement or the Prospectus, or any amendment thereof or supplement thereto (including any term sheet within the meaning of Rule 434 of the Rules and Regulations), contains an untrue statement of fact which, in the Representatives' reasonable opinion, is material, or omits to state a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counselRepresentatives' reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact whichtherein, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in under which they were made, not misleading, which misstatement or omission has not been corrected.
(c) All corporate proceedings incident Between the date hereof and the Closing Date (or the Option Closing Date, as the case may be), no Material Adverse Change shall have occurred or become known to the authorizationCompany that, form and validity in the Representatives' reasonable judgment, makes it impracticable or inadvisable to proceed with the public offering of each of this Agreement, the Stock, Preferred Stock as contemplated by the Registration Statements, the General 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 mattersProspectus.
(d) Fenwick The Representatives shall have received on the Closing Date and the Option Closing Date, as the case may be, (i) an opinion of Xxxxxx & West Whitney LLP, counsel for the Company, substantially in the form of EXHIBIT A attached hereto, and (ii) an opinion from Xxxxx X. Xxxxxxxx, Esq., Senior Vice President and General Counsel of the Company, substantially in the form of EXHIBIT B attached hereto, which opinions shall have furnished to be dated the Representative such counsel’s written opinion Closing Date and negative assurance statementthe Option Closing Date, each as the case may be, and addressed to the Underwriters Underwriters. Counsel rendering such opinions may rely as to questions of law not involving the laws of the United States or the State of Minnesota upon opinions of local counsel, and dated as to questions of fact upon representations or certificates of officers of the Closing DateCompany, in form and substance reasonably satisfactory to the Representativeof government officials.
(e) The Representative Representatives shall have received on the Closing Date and the Option Closing Date, as the case may be, an opinion from Xxxxxxx Procter Stoel Rives LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date and the Option Closing Date, with respect as the case may be, and addressed to the Underwriters, as to such matters as the Underwriters may reasonably require, request. Such counsel shall have received such papers and information as they reasonably request from the Company shall have furnished to enable such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement Closing Date and on the Option Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company Representatives shall have furnished to the Representative received a certificateletter from PricewaterhouseCoopers LLP, independent certified public accountants, dated the Closing Date and the Option Closing Date, as the case may be, and addressed to the Underwriters, in the form previously agreed with the Representatives.
(g) You shall have received on the Closing Date and the Option Closing Date, as the case may be, a certificate of its the Company, dated the Closing Date or the Option Closing Date, as the case may be, signed by the Chief Executive Officer and its the Chief Financial Officer stating that of the Company, to the effect that:
(i) such officers have carefully examined The representations and warranties of the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus Company in this Agreement are true and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Timecorrect, as of the date of this Agreement 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 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) 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, are pending or threatened under the Act; and
(iii) 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 material information required to be included therein by the Act and in all material respects conformed to the requirements of the Act; the Registration Statement and the Prospectus, and any amendments or supplements thereto, did not and does not include any untrue statement of a material fact and did not or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (in the General Disclosure Package, as case of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements thereinProspectus, in the light of the circumstances in under which they are or were made, ) not misleading; and, (ii) since the effective date of the Initial Registration Statement, there has occurred no event has occurred which should have been required to be set forth in a supplement an amended or amendment to the Registration Statements, the General Disclosure Package or the supplemented Prospectus that which has not been so set forth thereinforth.
(h) The shares of Preferred Stock shall have been approved for listing on the Nasdaq National Market, subject only to official notice of issuance.
(iiii) The Company shall have complied with the provisions of Sections 2(f) and 4(e) hereof with respect to their knowledge, as the furnishing of Prospectuses.
(j) On or before each of the Closing Date and the Option Closing Date, as the case may be, the Representatives and counsel for the Underwriters shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the shares of Preferred Stock as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties or the satisfaction of any of the Company conditions or agreements, herein contained. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement are true and correct and may be terminated by the Representatives by notice to the Company has complied with all agreements and satisfied all conditions at any time on its part to be performed or satisfied hereunder at or prior to the Closing DateDate and, and (iv) there has not been, subsequent with respect to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure PackageOption Shares, at any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or time prior to the Option Closing Date, which termination shall be without liability on the Company part of any party to any other party, except that Section 5, Section 7 and Section 8 shall have furnished to the Representative at all times be effective and shall survive such further certificates and documents as the Representative may reasonably requesttermination. All opinions, letterscertificates, evidence letters and certificates mentioned above or elsewhere in other documents delivered pursuant to this Agreement shall be deemed to Section 6 will be in compliance with the provisions hereof only if they are satisfactory in form and substance reasonably satisfactory to counsel for the reasonable judgment of the Representatives and the Underwriters' counsel.
Appears in 1 contract
Samples: Underwriting Agreement (Cenex Harvest States Cooperatives)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements Prospectus shall have become effective under been timely filed with the Securities Act, and Commission in accordance with Section 6(a)(i). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding or examination for that such purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the knowledge of the Company’s knowledge, threatened by the Commission, ; and all requests for additional information on the part any request of the Commission (to be included or incorporated by reference for inclusion of additional information in the Registration Statements Statement or the Prospectus or otherwise) otherwise shall have been complied with with. If the Company has elected to rely upon Rule 462(b) under the reasonable satisfaction of the Representative; Securities Act, the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, Statement shall have become effective immediately upon its filing with by 10:00 P.M., Washington, D.C. time, on the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms date of this Agreement or the transactions contemplated herebyAgreement.
(b) None of the Underwriters No Underwriter shall have discovered and disclosed to the Company on or prior to the Closing such Delivery Date that any the Registration Statement Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto thereto, contains an untrue statement of a fact which, in the opinion of Lxxxxx & Wxxxxxx LLP, counsel for the Underwriters, is material or omits to state any a fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration StatementsStatement, the General Disclosure Package, each Prospectus and any Issuer Free Writing Prospectus Prospectus, and the Prospectus 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 and the Selling Stockholders shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, DLA Piper LLP (US) shall have furnished to the Representative such counsel’s Representatives its written opinion and negative assurance statementletter, each as counsel to the Company, addressed to the Underwriters and dated the Closing such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(e) Dentons Canada LLP, Dentons US LLP and DLA Piper LLP (US), the respective counsel for each of the Selling Stockholders, shall have furnished to the Representatives their written opinion, as counsel to each of the Selling Stockholders for whom they are acting as counsel, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives.
(f) The Representative Representatives shall have received from Xxxxxxx Procter Lxxxxx & Wxxxxxx LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementletter, dated the Closing such Delivery Date, with respect to such the issuance and sale of the Stock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fg) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered accounting firm with respect to the Company public accountants within the meaning of the Securities Act and are in compliance with the Rules and Regulations and PCAOB applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating 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, of firm with respect to the type financial information and other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters, underwriters in connection with registered public offerings.
(h) With respect to the financial statements and certain financial information contained or incorporated by reference letter of Exxxx & Yxxxx referred to in the Registration Statementspreceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “initial letter”), the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative Company shall have received furnished to the Representatives a letter (the “bring-down letter”) from Ernst & Young LLP of such accountants, addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent public accountants within the Closing Date confirmingmeaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, firm with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with initial letter, and (iii) confirming in all material respects the execution of this Agreement pursuant to paragraph (f) of this Section 6conclusions and findings set forth in the initial letter.
(hi) The Company shall have furnished to the Representative Representatives a certificate, dated the Closing such Delivery Date, of its Chief Executive Officer and its Chief Financial Officer stating that as to such matters as the Representatives may reasonably request, including, without limitation, a statement:
(i) That the representations, warranties and agreements of the Company in Section 1 are true and correct on and as of such officers Delivery Date, and the Company has complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Delivery Date;
(ii) That no stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have carefully been instituted or, to the knowledge of such officers, threatened;
(iii) That they have examined the Registration Statement, the General Prospectus and the Pricing Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, (A) (1) the Registration Statements Statement, as of the Effective Date, (2) the Prospectus, as of its date and each amendment theretoon the applicable Delivery Date, at and (3) the Pricing Disclosure Package, as of the Applicable Time, as of the date of this Agreement and as of the Closing Date did not include 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, and (except in the General Disclosure Package, as case of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements thereinRegistration Statement, in the light of the circumstances in under which they were made, ) not misleading, and (iiB) since the effective date of the Initial Registration StatementEffective Date, no event has occurred which that should have been set forth in a supplement or amendment to the Registration StatementsStatement, the General Disclosure Package Prospectus or the any Issuer Free Writing Prospectus that has not been so set forth therein, forth; and
(iiiiv) To the effect of Section 9(m) (provided that no representation with respect to their knowledge, as the judgment of the Closing Representatives need be made) and Section 9(n).
(j) The Company shall have furnished to the Representatives a certificate, dated such Delivery Date, of its Chief Financial Officer certifying as to the representations accuracy of certain financial information included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, in form and substance satisfactory to the Underwriters.
(k) Each Selling Stockholder shall have furnished to the Representatives on such Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, the Selling Stockholder stating that the representations, warranties and agreements of the Company in this Agreement Selling Stockholder contained herein are true and correct on and as of such Delivery Date and that the Company Selling Stockholder has complied with all its agreements contained herein and has satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Delivery Date.
(l) Except as described in the Closing Datemost recent Preliminary Prospectus, and (ivi) there has not beenneither the Company nor any of its subsidiaries shall have sustained, subsequent to since the date of the most recent latest audited financial statements included or incorporated by reference in the General Disclosure Packagemost recent Preliminary Prospectus, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and or (ii) since such date there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, subsidiaries or any change, or any development involving a prospective change, in or affecting the businesscondition (financial or otherwise), general affairsresults of operations, stockholders’ equity, properties, management, financial position, stockholders’ equity business or results of operations prospects of the Company or any of and its subsidiaries, otherwise than subsidiaries taken as set forth in the General Disclosure Packagea whole, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) ), is, individually or in the aggregate, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of the Stock being delivered on such Delivery Date on the terms and in the manner contemplated in the General Disclosure PackageProspectus.
(jm) No action On or after the Applicable Time (i) no downgrading shall have been taken occurred in the rating accorded the Company’s and the Insurance Subsidiaries’ financial strength or claims paying ability by any “nationally recognized statistical rating organization”, as defined in Section 3(a)(62) of the Exchange Act, and (ii) no law, statute, rule, regulation or order such organization shall have been enactedpublicly announced that it has under surveillance or review, adopted or issued by with possible negative implications, its rating of any governmental agency or body which would prevent the issuance or sale of the Stock Company’s and the Insurance Subsidiaries’ financial strength or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesclaims paying ability.
(kn) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) (A) trading in securities generally on any securities exchange that has registered with the NASDAQ Commission under Section 6 of the Exchange Act (including the New York Stock Exchange, The Nasdaq Global Select Market, The Nasdaq Global Market or The Nasdaq Capital Market), or (B) trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, limited or the settlement of such trading generally shall have been materially disrupted or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by Federal federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesauthorities, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, States or there shall have been a declaration of a national emergency or war by the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions 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) or any other calamity or crisis, either within or outside the United States, in each case as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale public offering or delivery of the Stock being delivered on such Delivery Date on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Lock-Up Agreements between the Representatives and the officers, directors and stockholders of the Company shall have furnished set forth on Schedule III, delivered to the Underwriters a Secretary’s Certificate Representatives on or before the date of the Companythis Agreement, shall be in form full force and substance reasonably satisfactory to counsel for the Underwriterseffect on such Delivery Date.
(p) On or prior to the Closing each Delivery Date, the Company shall have furnished to the Representative Underwriters such further certificates and documents as the Representative Representatives may reasonably request.
(q) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, or other arrangements of the transactions, contemplated hereby. 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Skyward Specialty Insurance Group, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunderto purchase and pay for the Shares as provided herein on the First Closing Date and, and with respect to the closing of Option Shares, the sale of the StockOption Closing Date, are shall be subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties on the part of the Company contained hereinand the Selling Stockholders set forth in Section 1 and Section 2 hereof as of the date hereof and as of the First Closing Date as though then made and, with respect to the Option Shares, as of the Option Closing Date as though then made, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the timely performance by the Company and the Selling Stockholders of its their respective covenants and other obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements Statement shall have become effective under prior to the Securities Actexecution of this Agreement, or at such later date as shall be consented to in writing by the Underwriters; and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Knowledge of the Company’s knowledge, any Selling Shareholder or any Underwriter, threatened by the Commission, and all requests any request of the Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeUnderwriters’ Counsel; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA NASD shall have raised no objection to the fairness and reasonableness of the underwriting terms of this Agreement and arrangements. No amendment to the Registration Statement, any Preliminary Prospectus or the transactions contemplated herebyProspectus to which the Underwriters or the Underwriters’ Counsel shall have reasonably objected, after having received reasonable notice of a proposal to file the same, shall have been filed.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of other legal matters in connection with this Agreement, the Stock, the form of Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus Statement and the Prospectus and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the UnderwritersProspectus, and the Company registration, authorization, issue, sale and delivery of the Shares, shall have furnished been reasonably satisfactory to Underwriters’ Counsel, and such counsel all documents shall have been furnished with such papers and information that as they may reasonably request have requested to enable them to pass upon the matters referred to in this Section.
(c) Subsequent to the execution and delivery of this Agreement and prior to the First Closing Date, and on the Option Closing Date, as the case may be,
(i) there shall not have been any Material Adverse Effect 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 Shares as contemplated by the Prospectus; and
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization,” as such mattersterm is defined for purposes of Rule 436(g)(2) under the Act.
(d) Fenwick & West At the First Closing Date and on the Option Closing Date, as the case may be, the Underwriters shall have received from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the CompanyCompany (“Company Counsel”), shall have furnished to the Representative a signed opinion dated as of such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters’ Counsel, in the form and substance of Exhibit B annexed hereto.
(e) The Representative At the First Closing Date and on the Option Closing Date, as the case may be, the Underwriters shall have received from Xxxxxxx Procter LLP[ ], patent and trademark counsel for the UnderwritersCompany (“IP Company Counsel”), a signed opinion dated as of such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect reasonably satisfactory to such matters as the Underwriters may reasonably requireUnderwriters’ Counsel, in the form and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matterssubstance of Exhibit C annexed hereto.
(f) At the time of First Closing Date, and on the execution of this AgreementOption Closing Date, as the case may be, the Representative Underwriters shall have received from Ernst & Young LLP [ ], counsel for the Selling Stockholders (“Selling Stockholders Counsel”), a lettersigned opinion dated as of such Closing Date, addressed reasonably satisfactory to the Underwriters’ Counsel, executed in the form and substance of Exhibit D annexed hereto.
(g) At the First Closing Date, and on the Option Closing Date, as the case may be, the Company and the Selling Stockholders shall have received from Underwriters’ Counsel a signed opinion dated as of such dateClosing Date, reasonably satisfactory to the Underwriters’ Counsel, in the form and substance of Exhibit E annexed hereto.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Representative (i) confirming that they are an Underwriters, from Xxxxx Xxxxxxxx LLC, independent registered accounting firm with respect to the Company within the meaning of the Securities Act public accountants, containing statements and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package Statement and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than two business days before the Closing Date.
(gi) On The Underwriters shall have received on the effective date of any post-effective amendment to any Registration Statement First Closing Date, and on the Option Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date certificate of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificateCompany, dated the First Closing Date or the Option Closing Date, of its as the case may be, signed by the Chief Executive Officer and its Chief Financial Officer stating that of the Company, to the effect that, and you shall be satisfied that:
(i) such officers have carefully examined The representations and warranties of the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus Company in this Agreement are true and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Timecorrect, as of the date of this Agreement if made on and as of the First Closing Date or the Option Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the First Closing Date or the Option Closing Date, as the case may be;
(ii) 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;
(iii) 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 material information required to be included therein by the Act or the 1934 Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Act or the 1934 Act and the applicable rules and regulations of the Commission thereunder, as the case may be, the Registration Statement and the Prospectus, and any amendments or supplements thereto, did not and does not include any untrue statement of a material fact and did not or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, there has occurred no event has occurred which should have been required to be set forth in a supplement an amended or amendment to the Registration Statements, the General Disclosure Package or the supplemented Prospectus that which has not been so set forth thereinforth; and
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, there has not been (a) any Material Adverse Effect, (iiib) any transaction that is material to their knowledgethe Company and its subsidiaries considered as a whole, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as a whole, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the Closing Date, the representations and warranties capital stock or outstanding indebtedness of the Company in this Agreement are true and correct and or any of its subsidiaries that is material to the Company has complied with all agreements and satisfied all conditions its subsidiaries considered as a whole, (e) any dividend or distribution of any kind declared, paid or made on its part to be performed or satisfied hereunder at or prior to the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations capital stock of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(if) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained any loss or interference with its business from fire, explosion, flood or other calamity, damage (whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in insured) to the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt property of the Company or any of its subsidiaries, subsidiaries which has been sustained or any change, or any development involving will have been sustained which has a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure PackageMaterial Adverse Effect.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with obtained and delivered to the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, Underwriters an agreement substantially in the form of Exhibit A hereto, attached hereto from each officer and director of the persons Company and entities listed each Selling Shareholder. All of the certificates representing the Shares shall have been tendered for delivery in Exhibit B to accordance with the terms and provisions of this Agreement.
(ok) On each of the First Closing Date, and on the Option Closing Date, as the case may be, the Underwriters shall receive a written certificate executed by the Attorney-in-Fact of each Selling Stockholder, dated as of such Closing Date, to the effect that:
(i) the representations, warranties and covenants of such Selling Stockholder set forth in Section 1 or Section 2 of this Agreement are true and correct with the same force and effect as though expressly made by such Selling Stockholder on and as of such Closing Date; and
(ii) such Selling Stockholder 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 except for any conditions expressly waived in writing by the Underwriters.
(l) At least three business days prior to the date hereof, the Company and the Selling Stockholders shall have furnished for review by the Underwriters copies of the Powers of Attorney and Custody Agreements executed by each of the Selling Stockholders and such further information, certificates and documents as the Underwriters may reasonably request.
(m) The Shares shall be listed on the NASDAQ, subject only to official notice of issuance.
(n) The Company shall have furnished complied with the provisions of this Agreement with respect to the Underwriters a Secretary’s Certificate furnishing of the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersProspectuses.
(po) On or before each of the First Closing Date and the Option Closing Date, as the case may be, the Underwriters and Underwriters’ Counsel shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. If any condition specified in this Section 9 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Underwriters by notice to the Company and the Selling Stockholders at any time on or prior to the First Closing Date and, with respect to the Option Shares, at any time prior to the Option Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement which termination shall be deemed without liability on the part of any party to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel any other party, except for the Underwritersexpenses described in Section 12 of this Agreement.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, Underwriter hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofherein contained, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and further conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop No order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for that such purpose shall be pending before or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all any requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus Commission and the Prospectus Underwriter. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been filed with, transmitted to the Commission for filing pursuant to Rule 424(b) within the applicable prescribed time period prescribed for and the Company shall have provided evidence satisfactory to the Underwriter of such filing bytimely filing, or a post-effective amendment providing such information shall have been promptly filed and in compliance with, the Rules and Regulations and declared effective in accordance with Section 4(a)the requirements of Rule 430A. If the Company has elected to rely upon Rule 434, and the Rule 462(b) Registration Statement, if any, a term sheet shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection been transmitted to the fairness and reasonableness of Commission for filing pursuant to Rule 424(b) within the terms of this Agreement or the transactions contemplated herebyprescribed time period.
(b) None At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs, properties or business prospects of the Underwriters Company or any of its subsidiaries, whether or not arising in the ordinary course of business, and the Underwriter shall have discovered received a certificate of the President of the Company and disclosed the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that (A) there has been no such material adverse change, (B) 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 Time, (C) the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date that any Time, and (D) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or any amendment or supplement thereto contains an untrue statement of a fact which, in threatened by the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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 misleadingCommission.
(c) All corporate proceedings incident The Underwriter shall have received, at the time this Agreement is executed a signed letter from Deloitte & Touche, L.L.P. addressed to the authorization, form Underwriter and validity of each dated the date of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to previously approved by the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, Underwriter with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statements, the General Disclosure Package Statement and the Prospectus.
(gd) On the effective date of any post-effective amendment to any Registration Statement and on At the Closing DateTime, the Representative Underwriter shall have received:
(i) An opinion, dated the Closing Time, of Cantey & Hanger, L.L.P., counsel for the Company, substantiaxxx xn the form set forth in Annex I attached hereto.
(ii) An opinion, dated the Closing Time of Bennett Jones LLP, Canadian counsel for the Company, substantixxxx xx xxx form set forth in Annex II attached hereto.
(iii) An opinion, dated the Closing Time of Loomis, Ewert, Parsley, Davis & Gotting, P.C., Michigan counsel for the Company, substantialxx xx the form set forth in Annex III attached hereto.
(iv) An opinion, dated the Closing Time, of Vinson & Elkins L.L.P., counsel for the Underwriter, in form axx xxxstaxxx xxasonably satisfactory to the Underwriters.
(e) At the time of the execution of this Agreement and at the Closing Time, the Underwriter shall have received a letter (from Holditch-Reservoir Technologies Consulting Services, independent petroleum engineers for the “bring-down letter”) from Ernst & Young LLP addressed to Company, in each case in form and substance previously approved by the Underwriters and dated the Closing Date confirmingUnderwriter, stating, as of the date of the bring-down such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information with respect to oil and gas reserves is given or incorporated in the General Disclosure Package and the Prospectus, as of the case may be, as of a date that is not more than three (3) business five days prior to the date of the bring-down such letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, firm with respect to the financial information Company's oil and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph gas reserves.
(f) At the Closing Time, the Underwriter shall have received from Deloitte & Touche, L.L.P., independent certified public accountants, a letter, dated as of Closing Time, to the effect that it reaffirms the statements made in the letter furnished pursuant to subsection (c) of this Section 6Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(g) At the Closing Time, the Underwriter shall have been furnished with such documents and opinions as it may reasonably require for the purpose of enabling counsel for the Underwriter to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained, and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriter.
(h) The Company At the time of the execution of this Agreement, the Underwriter shall have furnished received from each of the executive officers and directors of the Company and from Mercury Exploration Company and Quicksilver Energy, L.L.C. a letter in which each such person agrees during a period of 90 days from the date hereof, that such person will not, without the prior written consent of the Underwriter, (A) sell, offer to sell, contract to sell, or otherwise dispose of, directly or indirectly, any shares of Common Stock, any other equity security of the Company or any security convertible into or exchangeable or exercisable for shares of Common Stock, beneficially owned by such person or with respect to which such person has the power of disposition or (B) make any demand for or exercise any right with respect to the Representative a certificate, dated the Closing Date, registration of its Chief Executive Officer and its Chief Financial Officer stating that any shares of Common Stock or other such securities.
(i) such officers have carefully examined In the Registration Statement, event that the General Disclosure Package, Underwriter exercises its option provided in Section 2(b) hereof to purchase all or any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as portion of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing DateOption Securities, the representations and warranties of the Company contained herein and the statements in this Agreement are any certificates furnished by the Company hereunder shall be 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 the Closing Date, and (iv) there has not been, subsequent to the date as of the most recent audited financial statements included or incorporated by reference in Date of Delivery and, at the General Disclosure PackageDate of Delivery, any material adverse change in the financial position or results Underwriter shall have received:
(i) A certificate, dated such Date of operations Delivery, of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects President of the Company and its subsidiaries taken of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 5(b) hereof remains true and correct as a wholeof such Date of Delivery.
(ii) An opinion, except as dated such Date of Delivery, of Cantey & Hanger, L.L.P., counsel for the Company, substantialxx xx the form set forth in the ProspectusAnnex I attached hereto.
(iiii) Since An opinion, dated such Date of Delivery, of Bennett Jones LLP counsel for the date Company, substantially in xxx xxxx xxx xorth in Annex II attached hereto.
(iv) An opinion, dated the Closing Time of Loomis, Ewert, Parsley, Davis & Gotting, P.C., Michigan counsel for the latest audited financial statements included in Company, substantiaxxx xn the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as form set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure PackageAnnex III attached hereto.
(jv) No action shall have been taken and no lawAn opinion, statutedated such Date of Delivery, ruleof Vinson & Elkins L.L.P., regulation or order shall have been enactedcounsel for the Underwriters, adopted or issued by any governmental agency or body which would prevent in form xxx subxxxxxx reasonably satisfactory to the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesUnderwriters.
(kvi) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto A letter from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the CompanyDeloitte & Touche LLP, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to Underwriter and dated the Closing DateDate of Delivery, substantially the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are same in form and substance reasonably as the letter furnished to the Underwriter pursuant to Section 5(f) hereof, except that the "specified date" in the letter furnished pursuant to this Section 5(i)(v) shall be a date not more than five days prior to the Date of Delivery.
(vii) A letter from Holditch-Reservoir Technologies Consulting Services, in form and substance satisfactory to counsel for the UnderwritersUnderwriter and dated the Date of Delivery, substantially the same in form and substance as the letter furnished to the Underwriter pursuant to Section 5(e) hereof, except that the "specified date" in the letter furnished pursuant to this Section 5(i)(vi) shall be a date not more than five days prior to the Date of Delivery. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriter by notice to the Company at any time at or prior to Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4. Notwithstanding any such termination, the provisions of Sections 6 and 7 shall remain in effect.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and ; the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; , and FINRA shall have raised no unresolved objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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[Reserved.]
(d) Fenwick Smith, Anderson, Blount, Dorsett, Xxxxxxxx & West LLPXxxxxxxx, counsel for the Company, L.L.P. shall have furnished to the Representative such counsel’s written opinion and negative assurance statementletter, each as counsel to the Company, addressed to the Underwriters and each dated as of the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) Xxxxx Bigel LLP shall have furnished to the Representative such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Underwriters and each dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(f) Xxxxxx & Xxxxxxx LLP shall have furnished to the Representative such counsel’s written opinion, as regulatory counsel to the Company, addressed to the Underwriters and each dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(g) The Representative shall have received from Xxxxxxx Procter Xxxxxx LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the as of such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fh) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP PricewaterhouseCoopers LLP, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 StatementsStatement, the General Disclosure Package and the Prospectus.
(gi) On the effective date of any post-effective amendment to any the Registration Statement and on the such Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young PricewaterhouseCoopers LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (fg) of this Section 6.
(hj) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating in their respective capacities as officers of the Company on behalf of the Company and not in their individual capacities that (i) such officers have carefully examined no stop order suspending the effectiveness of the Registration StatementStatement (including, the General Disclosure Packagefor avoidance of doubt, any Permitted Free Writing Prospectus and the Prospectus andRule 462(b) Registration Statement), in their opinion, the Registration Statements and each or any post-effective amendment thereto, at shall be in effect and no proceedings for such purpose shall have been instituted or, to their knowledge, threatened by the Applicable TimeCommission, as of (ii) for the period from and including the date of this Agreement through and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the including such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that there has not been so set forth thereinoccurred any Material Adverse Effect, (iii) to their knowledge, after reasonable investigation, as of the such Closing Date, 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 the such Closing Date, Date and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change Material Adverse Effect in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would reasonably be expected to involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a wholeMaterial Adverse Effect, except as set forth in the General Disclosure Package and the Prospectus.
(ik) Since the date of the latest most recently audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofPackage, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiariesCompany, or any change, or any development involving a prospective change, in or affecting the business, properties, assets, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of and its subsidiaries, taken as a whole, otherwise than as set forth in the General Disclosure PackagePackage or the Prospectus, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) Section 6(k), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock Offered Securities on the terms and in the manner contemplated in the General Disclosure Package.
(jl) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which regulatory authority that would prevent the issuance or sale of the Stock Offered Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock Offered Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(km) Subsequent to the execution and delivery of this Agreement Agreement, there shall not have occurred any of the following: (i) trading in any of the Company’s securities shall have been suspended, or materially limited by the Commission or the Exchange, or trading in securities generally on the NASDAQ New York Stock Exchange, Nasdaq Global Select Market, Nasdaq Global Market, Nasdaq Capital Market or the NYSE American, or trading in any securities of the Company on any exchange or in the over-the-counter marketexchange, shall have been suspended or materially limitedsuspended, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal federal or state authorities authorities, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, hostilities or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock Offered Securities on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(ln) The Company shall have filed submitted a Notification: Listing listing of Additional Shares additional shares notification form to the Exchange with respect to the NASDAQ Global Market Stock and shall have received no objection thereto from the NASDAQ Global MarketWarrant Shares.
(mo) The Representative shall have received on and as of the such Closing Date satisfactory evidence of the good standing of the Company in the State its jurisdiction of Delaware organization and existence its good standing as a foreign corporation in such other jurisdictions as the State of WashingtonRepresentative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities governmental authorities of such jurisdictions.
(np) The Representative shall have received the written agreements, substantially in the form of Exhibit I-A hereto, from each of the persons Company’s executive officers and entities listed directors, and each other person or entity set forth in Exhibit I-B to this Agreementhereto.
(oq) The Company shall have furnished to the Underwriters Representative a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel to the Underwriters and customary for the Underwriterstype of offering contemplated by this Agreement.
(pr) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Novan, Inc.)
Conditions of Underwriters’ Obligations. The respective several obligations of the several Underwriters hereunderto purchase and pay for the Shares, and the closing of the sale of the Stockas provided herein, are shall be subject to the accuracy, when made as of the date hereof and as of the Applicable Time and on Closing Date (and, if applicable, the Option Closing Date), of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no No stop order suspending the effectiveness of any the Registration Statement or any part thereofStatement, preventing or suspending the use of any Base Prospectusas amended from time to time, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledgeknowledge of the Company or any Underwriter, threatened or contemplated by the CommissionSEC, and all requests any request of the SEC for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebyUnderwriters.
(b) None of the Underwriters No Underwriter shall have discovered and disclosed to advised the Company on or prior to the Closing Date (and, if applicable, the Option Closing Date), that any the Registration Statement or Prospectus or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for to the Underwriters, is material material, or omits to state any a fact which, in the 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 General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact whichtherein, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in under which they were made, not misleading.
(c) All corporate proceedings incident to On the authorizationClosing Date (and, form and validity of each of this Agreementif applicable, the StockOption Closing Date), the Registration Statements, the General 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 you shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick received the opinion of Haynxx & West LLPXoonx, XXP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters you and dated the Closing Date (and, if applicable, the Option Closing Date), in form and substance reasonably satisfactory to the Representative.effect that:
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect The Registration Statement and all post-effective amendments thereto and the Abbreviated Registration Statement, if any, have become effective under the 1933 Act; any required filing of the Prospectus or any supplement thereto pursuant to Rule 424(b) or otherwise has been made in the manner and within the time period required thereby; and, to the Company within knowledge of such counsel after due inquiry, no stop or other order suspending the
(ii) The Registration Statement and the meaning Prospectus, and each amendment or supplement thereto (including any document incorporated by reference into the Registration Statement), as of their respective effective or issue date, comply as to form and appear on their face to be appropriately responsive in all material respects to the Securities requirements of Form S-3 under the 1933 Act and the applicable 1933 Act Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of except that such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect counsel need express no opinion as to the financial statements statements, the schedules, reserve information and certain other financial information contained and statistical data included in the Registration Statement or in the Prospectus or in any document incorporated by reference therein); the conditions for use of Form S-3 have been satisfied; and, as of the date they were filed with the SEC, the documents incorporated by reference in the Registration StatementsStatement appear on their face to comply as to form and be appropriately responsive in all material respects with the requirements of the 1934 Act and the applicable 1934 Act Rules and Regulations (except that such counsel need express no opinion as to the financial statements, the General Disclosure Package schedules, reserve information and other financial and statistical data included in the ProspectusRegistration Statement or in the Prospectus or in any document incorporated by reference therein).
(giii) On To the effective date of any post-effective amendment to any extent summarized therein, all contracts and agreements summarized in the Registration Statement and on the Closing DateProspectus are fairly summarized therein, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed conform in all material respects to the Underwriters descriptions thereof contained therein, and, to the extent such contracts or agreements or any other material agreements are required under the 1933 Act, or the 1933 Act Rules and dated the Closing Date confirmingRegulations, to be filed, as of the date of the bring-down letter (or, with respect exhibits to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, they are so filed; and such counsel does not know of any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date did not include any untrue statement of a material fact and did not omit to state a material fact contracts or other documents required to be stated therein summarized or necessary disclosed in the Prospectus or to make be so filed as exhibits to the statements therein Registration Statement that have not misleadingbeen so summarized, disclosed or so filed.
(iv) This Agreement has been duly authorized, executed and delivered by the General Disclosure Package, Company.
(v) The Company and its subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment states or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances other jurisdictions in which they were made, not misleading, (ii) since are incorporated. CN is the effective date only partnership of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries is a general partner or owns fifty percent or more of the partnership interests. CN is a general partnership duly organized under the laws of the State of Texas, and the Company owns all of the partnership interests in CN. Each of the Company, its subsidiaries and CN has full corporate power and authority to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company's obligations under, this Agreement; each of the Company, its subsidiaries and CN is duly qualified to do business as a foreign corporation or partnership in good standing in each state or other jurisdiction in which their
(vi) The Company is the sole record owner, directly or indirectly, of all of the outstanding capital stock of each of its subsidiaries.
(vii) The issuance and sale of the Shares and the execution, delivery and performance by the Company of this Agreement, and the consummation of the transactions herein contemplated, will not conflict with or constitute a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any change lien, charge or development thatencumbrance upon any properties or assets of the Company, singularly its subsidiaries or CN under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel after due inquiry to which the Company, any of its subsidiaries or CN is a party or by which the Company, any of its subsidiaries or CN is bound or to which any of the properties or assets of the Company, any of its subsidiaries or CN is subject, except to such extent as, individually or in the aggregate, would involve does not have a material adverse change or a prospective material adverse changeMaterial Adverse Effect, nor will such action result in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects any violation of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date provisions of the latest audited financial statements included in the General Disclosure Package Company's certificate of incorporation or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company bylaws or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or other law, or any order shall have been enactedor judgment known to such counsel after due inquiry, adopted of any court or issued by any governmental agency or body which would prevent having jurisdiction over the Company, its subsidiaries or CN or any of their properties.
(viii) No consent, approval, authorization, order, registration or qualification of, or with, any court or governmental agency or body is required in connection with the execution, delivery and performance of this Agreement, and the issuance or and sale of the Stock Shares or materially and adversely affect or potentially materially and adversely affect the business or operations consummation of the Company transactions contemplated hereby, except such as may be required under the 1933 Act or any of its subsidiaries; the 1933 Act Rules and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall Regulations and have been issued which would prevent obtained, or as may be required by the issuance NASD or sale under state securities or blue sky laws in connection with the purchase and distribution of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market Shares by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pix) On To the knowledge of such counsel after due inquiry, (A) there are no material (individually, or prior in the aggregate) legal, governmental or regulatory proceedings pending or threatened to which the Company, any of its subsidiaries or CN is a party or of which the business or properties of the Company, any of its subsidiaries or CN is the subject which are not disclosed in the Registration Statement and Prospectus; (B) there are no contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Closing DateRegistration Statement which are not described or filed as required; and (C) there are no statutes, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request. All opinionsordinances, letterslaws, evidence and certificates mentioned above rules or elsewhere in this Agreement shall be deemed regulations required to be described in compliance with the provisions hereof only if they Registration Statement or Prospectus which are in form and substance reasonably satisfactory to counsel for the Underwritersnot described as required.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the each Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no unresolved objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration StatementsStatement, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, Xxxxxxx Procter LLP shall have furnished to the Representative Representatives such counsel’s written opinion and negative assurance statementletter, each as counsel to the Company, addressed to the Underwriters and dated the as of such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(e) Xxxxxx LLP shall have furnished to the Representatives such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Underwriters and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(f) The Representative Representatives shall have received from Xxxxxx & Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the as of such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fg) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young EisnerAmper LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Representatives (i) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 StatementsStatement, the General Disclosure Package and the Prospectus.
(gh) On the effective date of any post-effective post‑effective amendment to any the Registration Statement and on the such Closing Date, the Representative Representatives shall have received a letter (the “bring-down bring‑down letter”) from Ernst & Young EisnerAmper LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down 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 General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down bring‑down letter), the conclusions and findings of such each firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Representatives concurrently with the execution of this Agreement pursuant to paragraph (fg) of this Section 6.
(hi) The Company shall have furnished to the Representative Representatives a certificate, dated the such Closing Date, of its Chief Executive Officer or President and its Chief Principal Financial Officer stating in their respective capacities as officers of the Company on behalf of the Company and not in their individual capacities that (i) such officers have carefully examined no stop order suspending the effectiveness of the Registration StatementStatement (including, the General Disclosure Packagefor avoidance of doubt, any Permitted Free Writing Prospectus and the Prospectus andRule 462(b) Registration Statement), in their opinion, the Registration Statements and each or any post‑effective amendment thereto, at shall be in effect and no proceedings for such purpose shall have been instituted or, to their knowledge, threatened by the Applicable TimeCommission, as of (ii) for the period from and including the date of this Agreement through and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the including such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that there has not been so set forth thereinoccurred any Material Adverse Effect, (iii) to their knowledge, after reasonable investigation, as of the such Closing Date, the representations and warranties of the Company in this Agreement that are qualified by materiality are true and correct and the representations and warranties of the Company not qualified by materiality are true and correct in all material respects, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited consolidated financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change Material Adverse Effect in the financial position or results of operations of the Company or any of its subsidiariesCompany, or any change or development that, singularly or in the aggregate, would reasonably be expected to involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a wholeMaterial Adverse Effect, except as set forth in the General Disclosure Package and the Prospectus.
(ij) Since the date of the latest audited consolidated financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofPackage, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term long‑term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure PackagePackage or the Prospectus, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ik) is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jk) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(kl) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in any of the Company’s securities shall have been suspended or materially limited by the Commission or the Exchange, or trading in securities generally on the NASDAQ New York Stock Exchange, The Nasdaq Global Select Market, The Nasdaq Global Market, The Nasdaq Capital Market or the NYSE MKT LLC or in the over‑the‑counter market, or trading in any securities of the Company on any exchange or in the over-the-counter over‑the‑counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lm) The Company shall have filed a Notification: Listing of Additional Shares shares with the NASDAQ The Nasdaq Global Market and shall have received no objection thereto from the NASDAQ The Nasdaq Global Market.
(mn) The Representative Representatives shall have received on and as of the 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 State of Delaware and existence as a foreign corporation in the State of WashingtonRepresentatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(no) The Representative Representatives shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons officers, directors and entities listed certain holders of the Company’s capital stock, as set forth in Exhibit B to this AgreementSchedule D hereto.
(op) The Company shall have furnished to the Underwriters Representatives a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersUnderwriters and customary for the type of offering contemplated by this Agreement.
(pq) [Reserved].
(r) On or prior to the such Closing Date, the Company shall have furnished to the Representative Representatives such further certificates and documents as the Representative Representatives may reasonably request.
(s) [Reserved]. 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Rocket Pharmaceuticals, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations obligation of each Underwriter to purchase the several Underwriters hereunder, and the closing of the sale of the Stock, are subject to the accuracy, when made and as of the Applicable Time and Underwritten Shares on the Closing Date or the Option Shares on the Additional Closing Date, of as the representations and warranties of the Company contained hereincase may be, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, as provided herein is subject to the performance by the Company of its covenants and other obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or any part thereofshall be in effect, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding for that such purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, be pending before or 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 an 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 on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.Representatives;
(b) None the representations and warranties of the Underwriters Company contained herein shall have discovered be true and disclosed to correct in all material respects at the Company Time of Sale, on or prior to the date hereof and on and as of the Closing Date that or the Additional Closing Date, as the case may be; and the statements of the Company and its officers made in any Registration Statement certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date or the Additional Closing Date, as the case may be;
(c) no Material Adverse Change shall have occurred or shall exist, which is not described in the Time of Sale Information (excluding any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material thereto) and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or (excluding any amendment or supplement thereto contains an untrue statement thereto) and the effect of fact which, which in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light reasonable judgment of the circumstances in which they were madeRepresentatives makes it impracticable or inadvisable to proceed with the offering, not misleading.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time sale or delivery of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and Shares on the Closing Date or the Additional Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to on the date of terms and in the bring-down letter)manner contemplated by this Agreement, the conclusions Time of Sale Information and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6Prospectus.
(hd) The Company the Representatives shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement received on and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Additional Closing Date, any Permitted Free Writing Prospectus as the case may be, a certificate of its date and as one of the Closing Date, chief executive officer or the Prospectus and each amendment or supplement thereto, as chief financial officer of the respective date thereof Company and as one other officer of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make Company (A) confirming that such officers have reviewed the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, Time of Sale Information and the General Disclosure Package or the Prospectus that has not been so set forth thereinProspectus, (iiiB) to their knowledge, as of the Closing Date, certifying that the representations and warranties of the Company in this Agreement are true and correct and that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date, and (ivC) there has not beencertifying that the statements included in Sections 7(a) and 7(c) above are true and correct.
(e) PricewaterhouseCoopers LLP shall have furnished to the Representatives, subsequent to at the request of the Company, letters dated, respectively, the date of this Agreement, the date of the most recent audited Prospectus, the Closing Date and, if applicable, the Additional Closing Date, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants' "comfort letters" to underwriters with respect to the financial statements included and certain financial information contained or incorporated by reference in the General Disclosure PackageRegistration Statement, any material adverse change in the financial position Time of Sale Information and the Prospectus; provided that the letter delivered on the Closing Date or results of operations the Additional Closing Date, as the case may be, shall use a "cut-off" date no more than three business days prior to such Closing Date or such Additional Closing Date, as the case may be;
(f) the Representatives shall have received on and as of the Company Closing Date or any the Additional Closing Date, as the case may be, a written opinion from each of its subsidiariesW. Xxxx Xxxxx, or any change or development thatVice President, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects Secretary and Chief Corporate Development Officer of the Company Company, Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Company, Shearman & Sterling LLP, New York counsel for the Company, addressed to the Underwriters, and its subsidiaries taken as a whole, except as covering the matters set forth in Annexes D, E and F, respectively, hereto. The opinions of Blake, Xxxxxxx & Xxxxxxx LLP and Shearman & Sterling LLP shall be rendered to the Prospectus.Underwriters at the request of the Company, as the case may be, and shall so state therein;
(ig) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package Representatives shall have received on and as of the date hereofClosing Date or the Additional Closing Date, (i) as the Company and its subsidiaries shall not have sustained any loss or interference case may be, an opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP, counsel for the Underwriters, 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, otherwise than respect to such matters as set forth in the General Disclosure PackageUnderwriters may reasonably request, and (ii) there such counsel shall not have been any change in the capital stock (other than stock option received such documents and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than information as set forth in the General Disclosure Package, the effect of which, in any they may reasonably request to enable them to pass upon such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.matters;
(jh) No no action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental agency or body which would regulatory authority that would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesShares; and no injunction, restraining order injunction or order of any other nature by any federal federal, state or state foreign court of competent jurisdiction shall have been issued which would that would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.Shares;
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative Representatives shall have received on and as of a recent date prior to the Closing Date or the Additional Closing Date, as the case may be, satisfactory evidence of the good standing of the Company and the Subsidiaries identified on Schedule 3 hereto in the State their respective jurisdictions of Delaware and existence as a foreign corporation in the State of Washingtonorganization, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.;
(nj) The Representative the Shares to be delivered on the Closing Date or Additional Closing Date, as the case may be, shall have received been approved for listing on NYSE, subject to official notice of issuance, and conditionally approved for listing on the written TSX, subject to satisfaction or waiver of customary conditions;
(k) the "lock-up" agreements, each substantially in the form of Exhibit A Annex C hereto, between the Representatives and those certain shareholders, officers and directors of the persons Company identified on Schedule 2 hereto relating to sales and entities listed certain other dispositions of shares of Stock or certain other securities, delivered to you on or before the date hereof, shall be in Exhibit B full force and effect on the Closing Date or Additional Closing Date, as the case may be; and The several obligations of the Underwriters to this Agreement.
(o) The Company shall have furnished purchase Option Shares hereunder are subject to the delivery to the Underwriters a Secretary’s Certificate on the applicable Additional Closing Date of such documents as they may reasonably request with respect to the good standing of the Company, in form the due authorization and substance reasonably satisfactory issuance of the Option Shares to counsel for the Underwriters.
(p) On or prior be sold on such Additional Closing Date and other matters related to the Closing Dateissuance of such Option Shares. In case any of the conditions specified in this Section 7 shall not be fulfilled, this Agreement may be terminated by the Representatives by giving notice to the Company. Any such termination shall be without liability of the Company to the Underwriters and without liability of the Underwriters to the Company, provided, however, that (i) in the event of such termination, the Company agrees to indemnify and hold harmless the Underwriters from all costs or expenses incident to the performance of the obligations of the Company under this Agreement, including all costs and expenses referred to in Section 11 hereof, and (ii) if this Agreement is terminated by the Representatives because of any refusal, inability or failure on the part of the Company to perform any agreement herein, to fulfill any of the conditions herein, or to comply with any provision hereof, such that the conditions of this Section 7 are not met, other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally upon demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere been incurred by them in this Agreement shall be deemed to be in compliance connection with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriterstransactions contemplated hereby.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date or the Option Closing Date, as the case may be, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the knowledge of the Company’s knowledge, threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no unresolved objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact whichFried, in the opinion of counsel for the UnderwritersFrank, is material or omits to state any fact whichHarris, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick Xxxxxxx & West LLP, counsel for the Company, Xxxxxxxx LLP shall have furnished to the Representative such counsel’s written opinion and negative assurance statementopinion, each as special counsel to the Company, addressed to the Underwriters and dated the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the RepresentativeRepresentative and substantially as set forth on Exhibit II hereto.
(c) Xxxxx, Xxxxxx & XxXxxxxx, P.C. shall have furnished to the Representative such counsel’s written opinion, as regulatory counsel to the Company, addressed to the Underwriters and dated the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representative and substantially as set forth on Exhibit III hereto.
(d) K&L Gates LLP shall have furnished to the Representative such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Underwriters and dated the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representative and substantially as set forth on Exhibit IV hereto.
(e) The Representative shall have received from Xxxxxx & Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the Closing Date or the Option Closing Date, as the case may be, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young PricewaterhouseCoopers LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company and its Subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB rules and regulations of the Public Company Accounting Oversight Board and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on Closing Date or the Option Closing Date, as the case may be, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young PricewaterhouseCoopers LLP addressed to the Underwriters and dated the Closing Date or the Option Closing Date, as the case may be, confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Registration Statements, the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date or the Option Closing Date, as the case may be, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined to the Registration Statementbest of their knowledge after reasonable investigation, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Option Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Datecase may be, 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 the Closing Date or the Option Closing Date, as the case may be, and (ivii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, Material Adverse Change except as set forth in the Prospectus.
(i) Since The Company shall have furnished to the Representative a certificate, dated the date of this Agreement, the latest audited Closing Date or the Option Closing Date, as the case may be, of its Chief Financial Officer with respect to certain financial statements included data contained in the General Disclosure Package or incorporated by reference and the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative.
(j) Since the respective dates as of which information is given in the Registration Statements, the General Disclosure Package as of and the date hereofProspectus (including any documents incorporated by reference therein), (i) the Company and its subsidiaries shall not have sustained 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, otherwise than except as set forth in the Registration Statements, the General Disclosure PackagePackage and the Prospectus, and (ii) or contemplated thereby, there shall has not have been any adverse change or any development involving a prospective change in or effecting the capital stock condition (other than stock option and warrant exercises and stock repurchases financial or otherwise), properties, assets, liabilities, operations, earnings, or business of the Company taken as a whole, whether or not arising from transactions in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) j), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market Exchange or the New York Stock Exchange, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such), in the case of clauses (i), (ii), (iii) and (iv) above, so as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company Exchange shall have filed a Notification: Listing approved the Firm Stock and any Optional Stock for listing therein, subject only to official notice of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Marketissuance.
(m) The Representative shall have received on and as of the Closing Date or the Option Closing Date, as the case may be, satisfactory evidence of the good standing of the Company in the State its jurisdiction of Delaware and existence as a foreign corporation in the State of Washingtonorganization, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities governmental authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons officers and entities directors of the Company listed in Exhibit B Schedule D to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date or the Option Closing Date, as the case may be, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time date hereof and on the Closing Date (as if made at the Closing Date), of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Registration Statements Prospectus shall have become effective under been filed with the Securities ActCommission in a timely fashion in accordance with Section 4(a) hereof; all filings (including, without limitation, the Final Term Sheet) required by Rule 424(b) or Rule 433 of the Rules and Regulations shall have been made within the time periods prescribed by such Rules, and no such filings will have been made without the consent of the Representatives (such consent not to be unreasonably withheld or delayed); no stop order suspending the effectiveness of any the Registration Statement or any part thereofamendment or supplement thereto, preventing or suspending the use of any Base Preliminary Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification of the Notes for offering or sale in any part thereof jurisdiction shall have been issued and issued; no proceedings for that purpose the issuance of any such order shall have been initiated or threatened pursuant to Section 8A under of the Securities Act Act; no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto shall have been initiated or, to received by the Company’s knowledge, threatened by ; and any request of the Commission, and all requests Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been disclosed to the Representatives and complied with to the Representatives’ reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebysatisfaction.
(b) None The Representatives shall have received a letter, dated the date of this Agreement, of KPMG LLP (“KPMG”), addressed to the Underwriters, confirming that they are independent public accountants within the meaning of the Underwriters Securities Act and the applicable published rules and regulations thereunder (“Rules and Regulations”) and to the effect that:
(i) in their opinion the financial statements and schedules (other than those relating to the Standalone Drug Business) examined by them and included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 100, Interim Financial Information, on the unaudited financial statements (other than those relating to the Standalone Drug Business) included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus;
(iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements (other than those relating to the Standalone Drug Business) included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules and Regulations or 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 balance sheet read by such accountants, and at a subsequent specified date not more than three business days prior to the date of this Agreement, there was any decrease in stockholders’ equity or change in the capital stock or any increase in short-term indebtedness or long-term debt of the Company and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net current assets or total assets, as compared with amounts shown on the latest balance sheet included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus; or
(C) for the period from the closing date of the latest income statement included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year and with the period of corresponding length ended the date of the latest income statement included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus, in consolidated net sales, net operating income, the total or per share amounts of net earnings or in the ratio of earnings to fixed charges, or any increases or decreases, as the case may be, in other items specified by the Representatives;
(D) except in all cases set forth in clauses (B) and (C) above for changes, increases or decreases which the most recent Preliminary Prospectus or the Prospectus discloses have occurred or may occur or which are described in such letter;
(iv) the pro forma financial statements, together with related notes, included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus are consistent with the historical statements, except for the pro forma adjustments specified therein, and give effect to assumptions made on a reasonable basis and present fairly the historical and proposed transactions contemplated hereby and by the most recent Preliminary Prospectus or the Prospectus, and nothing came to their attention that caused them to believe that the pro forma financial information included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus does not comply as to form in all material respects with the accounting requirements of the Securities Act and the related published Rules and Regulations or has not been properly compiled and that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of those statements; and
(v) they have compared specified dollar amounts (or percentages derived from such dollar amounts), numerical data and other financial information (other than those relating to the Standalone Drug Business) contained in the most recent Preliminary Prospectus or the Prospectus (in each case to the extent that such dollar amounts, percentages, numerical data and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages, numerical data and other financial information to be in agreement with such results except as otherwise specified in such letter.
(c) The Representatives shall have discovered and disclosed received a letter, addressed to the Company on or Underwriters, dated the Closing Date, of KPMG which meets the requirements of subsection (b) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each purposes of this Agreement, the Stock, the Registration Statements, the General 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 matterssubsection.
(d) Fenwick The Representatives shall have received a letter, dated the date of this Agreement, of Deloitte & West LLPTouche LLP (“Deloitte”), addressed to the Underwriters, confirming that they are independent public accountants within the meaning of the Securities Act and the related published Rules and Regulations and to the effect that:
(i) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 100, Interim Financial Information, on the unaudited financial statements relating to the Standalone Drug Business included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus;
(ii) on the basis of the review referred to in clause (i) above, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that the unaudited financial statements relating to the Standalone Drug Business included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules and Regulations or any material modifications should be made to such unaudited financial statements for them to be in conformity with generally accepted accounting principles; and
(iii) they have compared specified dollar amounts (or percentages derived from such dollar amounts), numerical data and other financial information contained in the most recent Preliminary Prospectus or the Prospectus (in each case to the extent that such dollar amounts, percentages, numerical data and other financial information are derived from the audited or unaudited carve out special purpose financial statements of the Standalone Drug Business) with the results obtained from inquiries, a reading of such financial statements and other procedures specified in such letter and have found such dollar amounts, percentages, numerical data and other financial information to be in agreement with such results except as otherwise specified in such letter.
(e) The Representatives shall have received a letter, addressed to the Underwriters, dated the Closing Date, of Deloitte which meets the requirements of subsection (d) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection.
(f) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries, taken as a whole, which, in the judgment of the Bookrunners, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Notes; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Bookrunners, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on the United States, outbreak or escalation of major hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Bookrunners, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Notes.
(g) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statementan opinion, each addressed to the Underwriters and Underwriters, dated the Closing DateDate substantially in the form of Exhibit A hereto.
(h) The Representatives shall have received from Xxxxx X. Xxxxxxxxx, Esq., Secretary and General Counsel of the Company, an opinion, addressed to the Underwriters, dated the Closing Date substantially in the form of Exhibit B hereto.
(i) The Representatives shall have received from Xxxxx Xxxxxxxxxx LLP, counsel to the Underwriters, such opinion or opinions, addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing DateRepresentatives, with respect to such the Notes, Indenture, Registration Statement, Prospectus and Disclosure Package and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fj) At the time of the execution of this Agreement, the Representative The Representatives shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer the President or any Vice President and its Chief Financial Officer stating the principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, the representations and warranties of the Company in this Agreement are true and correct and correct, (ii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for any such purpose have been initiated or threatened and (iviii) there has not been, subsequent to the date dates of the most recent audited financial statements included or incorporated by reference in the General Disclosure Packagemost recent Preliminary Prospectus and the Prospectus, any there has been no material adverse change change, nor any development or event involving a prospective material adverse change, in the condition (financial position or other), business, properties or results of operations of the Company or any of and its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as other than those set forth in or contemplated by the Prospectus.
(i) Since most recent Preliminary Prospectus and the date of the latest audited financial statements included in the General Disclosure Package Prospectus or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) certificate.. The Company shall have filed a Notification: Listing of Additional Shares will furnish the Underwriters with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities such conformed copies of such jurisdictions.
(n) The Representative shall have received the written agreementsopinions, substantially in the form of Exhibit A heretocertificates, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates letters and documents as the Representative may Underwriters reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere The Representatives may in this Agreement shall be deemed to be in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for obligations of the UnderwritersUnderwriters hereunder.
Appears in 1 contract
Samples: Underwriting Agreement (CVS Corp)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the such Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, any free writing prospectus, the Prospectus or any Permitted Free Writing Time of Sale Disclosure Package, the Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the CommissionCommission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations shall have been received, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; the Rule 462(b) Registration Statement, if any, any Preliminary Prospectus, each Issuer Free Writing Prospectus free writing prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations Securities Act and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General Time of Sale Disclosure Package, any Issuer Free Writing Prospectus free writing prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration StatementsStatement, the General Time of Sale Disclosure Package, each Issuer Free Writing Prospectus free writing prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West On each Closing Date, the Representatives shall have received the opinion letter and negative assurance letter of Xxxxxx LLP, counsel for the Company, shall have furnished to the Representative dated as of such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Datedate, in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(e) The Representative On each Closing Date, the Representatives shall have received from the certificate of the Senior Vice President, Chief Financial Officer and Chief Business Officer of the Company, dated as of such date, in form and substance reasonably satisfactory to the Representatives.
(f) On each Closing Date the Representatives shall have received the opinion and negative assurance letter of Xxxxxxx Procter LLP, counsel for the Underwriters in connection with the offer and sale of the Stock, in form and substance satisfactory to the Underwriters, dated as of such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such mattersdate.
(fg) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Representatives (i) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules rules and Regulations and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, 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 StatementsStatement, the General Time of Sale Disclosure Package and the Prospectus.
(gh) On the effective date of any post-effective amendment to any the Registration Statement and on the each Closing Date, the Representative Representatives shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Time of Sale Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Representatives concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(hi) The Company shall have furnished to the Representative Representatives a certificate, dated the such Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating on behalf of the Company, that (i) such officers have carefully examined no stop order suspending the effectiveness of the Registration StatementStatement (including, the General Disclosure Packagefor avoidance of doubt, any Permitted Free Writing Prospectus and the Prospectus andRule 462(b) Registration Statement), in their opinion, the Registration Statements and each or any post-effective amendment thereto, at shall be in effect and no proceedings for such purpose shall have been instituted or, to their knowledge, threatened by the Applicable TimeCommission, as of (ii) for the period from and including the date of this Agreement through and as of the Closing Date 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 not misleadingincluding such date, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that there has not been so set forth thereinoccurred any Material Adverse Change, (iii) to their knowledgethe representations, as of the Closing Date, the representations warranties and warranties covenants of the Company set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date, and (iv) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectussuch date.
(ij) Since the date of the latest audited financial statements included in the General Time of Sale Disclosure Package or incorporated by reference in the General Time of Sale Disclosure Package as of the date hereof, (i) neither the Company and nor any of its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Time of Sale Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of and its subsidiaries, otherwise than as set forth in the General Time of Sale Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) j), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Time of Sale Disclosure Package.
(jk) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kl) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company’s corporate credit rating or the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization,” as that 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 (other than an announcement with positive implications of a possible upgrading), the Company’s corporate credit rating or the rating of any of the Company’s debt securities.
(m) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in any of the Company’s securities shall have been suspended or materially limited by the Commission or by the Nasdaq Capital Market, or trading in securities generally on the NASDAQ New York Stock Exchange, Nasdaq Global Select Market, Nasdaq Global Market, Nasdaq Capital Market or the NYSE American LLC 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Time of Sale Disclosure Package and the Prospectus.
(ln) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Nasdaq Capital Market and shall have received no objection thereto from the NASDAQ Global Nasdaq Capital Market.
(mo) The Representative Representatives shall have received on and as of the such Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of incorporation and its good standing as foreign entities in such other jurisdictions as the State of Delaware and existence as a foreign corporation in the State of WashingtonRepresentatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities authorities of such jurisdictions.
(np) The Representative Representatives shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons executive officers and entities directors of the Company listed in Exhibit B Schedule D to this Agreement.
(oq) The Company shall have furnished to the Underwriters Representatives a certificate, dated such Closing Date, of its Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pr) On or prior to the such Closing Date, the Company shall have furnished to the Representative Representatives such further certificates and documents as the Representative Representatives may reasonably requestrequest and are customary for the type of offering contemplated by this Agreement. 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the each Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no unresolved objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, Xxxxxx LLP shall have furnished to the Representative Representatives such counsel’s written opinion and negative assurance statementletter, each as counsel to the Company, addressed to the Underwriters and dated the as of such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(e) XxXxxxxxx, Held & Xxxxxx, Ltd. shall have furnished to the Representatives such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Underwriters and dated as of such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(f) Xxxxxxx Xxxxxxx Xxxxx Xxxxxxx PLC shall have furnished to the Representatives such counsel’s written opinion, as special counsel to the Company, addressed to the Underwriters and dated as of such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(g) The Representative Representatives shall have received from Xxxxxxx Procter Xxxxxx, Xxxxx & Bockius LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the as of such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fh) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Representatives (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(gi) On the effective date of any post-effective amendment to any Registration Statement and on the such Closing Date, the Representative Representatives shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Representatives concurrently with the execution of this Agreement pursuant to paragraph (fh) of this Section 6.
(hj) The Company shall have furnished to the Representative Representatives a certificate, dated the such Closing Date, of its Chief Executive Officer and its Chief Financial Officer Officer, in their capacities as such, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinionopinion on behalf of the Company, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement their respective effective dates and as of the such Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledgeknowledge after reasonable investigation, as of the such Closing Date, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiariesCompany, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a wholeMaterial Adverse Effect, except as set forth in the Prospectus.
(ik) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofPackage, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than (1) Common Stock issued pursuant to the exercise of warrants or conversion of convertible securities or upon the exercise or vesting of stock option options or other awards outstanding under the Company’s equity compensation or other plans, (2) options, Common Stock or other securities granted or issued pursuant to the Company’s equity compensation or other plans, (3) Common Stock issued upon conversion or reclassification of the Company’s convertible preferred stock, (4) the issuance of the Stock and warrant exercises and (5) stock repurchases in required to be made by the ordinary course Company pursuant to the terms of businessexisting agreements) or long-term debt of the Company or any of its subsidiariesCompany, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiariesCompany, in each case, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) k), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jl) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued issued, in each case, by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(km) 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 NASDAQ New York Stock Exchange, Nasdaq Global Market or the NYSE MKT LLC 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(ln) The Company Exchange shall have filed a Notification: Listing approved the Stock for listing therein, subject only to official notice of Additional Shares with the NASDAQ Global Market issuance and shall have received no objection thereto from the NASDAQ Global Marketevidence of satisfactory distribution.
(mo) The Representative Representatives shall have received on and as of the such Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence its good standing as a foreign corporation entity in the State of WashingtonIowa, the State of Florida and the Commonwealth of Virginia, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(np) The Representative Representatives shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons requested officers, directors, stockholders, optionholders and entities listed in Exhibit B to this Agreementwarrantholders of the Company.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pq) On or prior to the such Closing Date, the Company shall have furnished to the Representative Representatives such further certificates and documents as the Representative Representatives 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the each Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, Xxxxxxxxxx Xxxxxxx LLP shall have furnished to the Representative Representatives such counsel’s written opinion and negative assurance statementletter, each as counsel to the Company, addressed to the Underwriters and dated the as of such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, to the effect of Exhibit III.
(e) [ ] shall have furnished to the Representatives such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Underwriters and dated as of such Closing Date, in form and substance reasonably satisfactory to the Representatives, to the effect of Exhibit IV.
(f) The Representative Representatives shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the as of such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fg) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young Xxxxx Xxxxxxxx LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Representatives (i) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(gh) On the effective date of any post-effective amendment to any Registration Statement and on the such Closing Date, the Representative Representatives shall have received a letter (the “bring-down letter”) from Ernst & Young Xxxxx Xxxxxxxx LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Representatives concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(hi) The Company shall have furnished to the Representative Representatives a certificate, dated the such Closing Date, of its Chief Executive Officer Chairman of the Board or President and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement their respective effective dates and as of the such Closing Date Date, 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth thereinProspectus, (iii) to the best of their knowledgeknowledge after reasonable investigation, as of the such Closing Date, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of and its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(ij) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofPackage, (iy) neither the Company and nor any of its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (iiz) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of and its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (iy) or (iiz) of this paragraph (i) ), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jk) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kl) 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 NASDAQ New York Stock Exchange, Nasdaq Global Market 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lm) The Company Exchange shall have filed a Notification: Listing approved the Stock for listing therein, subject only to official notice of Additional Shares with the NASDAQ Global Market issuance and evidence of satisfactory distribution.
(n) The Representatives shall have received no objection thereto from the NASDAQ Global Marketwritten agreements, substantially in the form of Exhibit I hereto, of the officers, directors, shareholders, optionholders and warrantholders of the Company.
(mo) The Representative Representatives shall have received on and as of the such Closing Date satisfactory evidence of the good standing of the Company company and its subsidiaries in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as the State of Delaware and existence as a foreign corporation in the State of WashingtonRepresentatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the such Closing Date, the Company shall have furnished to the Representative Representatives such further certificates and documents as the Representative Representatives 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West Xxxxxx LLP, corporate counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) Xxxxxxxx & Forester LLP, special intellectual property counsel for the Company, shall have furnished to the Representative such counsel’s written opinion, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(f) The Representative shall have received from Xxxxxx & Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fg) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young PricewaterhouseCoopers LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(gh) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young PricewaterhouseCoopers LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (fg) of this Section 6.
(hi) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to the best of their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiariesCompany, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a wholeCompany, except as set forth in the Prospectus.
(ij) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiariesCompany, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiariesCompany, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ij) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jk) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kl) 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 NASDAQ Global New York Stock Exchange or the Nasdaq Stock Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lm) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Capital Market and shall have received no objection thereto from the NASDAQ Global Capital Market.
(mn) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of WashingtonCalifornia, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(no) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B Schedule IV to this Agreement.
(op) The Company shall have furnished to the Underwriters Representative a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pq) The Company shall have furnished to the Representative a Certificate of the Chief Financial Officer of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(r) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties on the part of the Company contained herein, to herein and the accuracy of the statements of the Company Company's officers made in any certificates certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its obligations hereunder, part to be performed and observed and to each of the following additional terms and conditionsconditions precedent:
(a) The Registration Statements have become effective under At the Securities ActClosing Time, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall be instituted or pursuant to Section 8A under the Securities Act shall have been initiated threatened or, to the Company’s knowledgeknowledge of the Company or the Underwriters, threatened contemplated by the Commission; no stop order suspending the sale of the Notes in any jurisdiction designated by the Representative pursuant to Section 4(f) shall have been issued and no proceedings for that purpose shall have been instituted or threatened or, and all requests to the knowledge of the Company or the Underwriters, shall be contemplated; any request of the Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative. The supplement to the Prospectus referred to in Section 4(g) of this Agreement shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and prior to Closing Time the Company shall have provided evidence satisfactory to the Representative of such timely filing.
(b) The Underwriters shall have received an opinion from Xxxxxx X. Xxxxxx, Esq., Associate General Counsel for the Company, dated as of the Closing Time and in form and substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly existing in good standing under the laws of the State of Delaware. Each Principal Domestic Subsidiary is validly existing in good standing under the laws of its state of incorporation.
(ii) The Company has full corporate power and corporate authority to execute and deliver each of this Agreement, the Indenture and the Notes and to consummate the transactions contemplated thereby.
(iii) This Agreement has been duly authorized, executed and delivered by the Company.
(iv) The Indenture has been duly authorized, executed and delivered by the Company and (assuming the due authorization, execution and delivery of the Indenture by the Trustee) is a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except (x) as may be subject to or limited by (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, (B) the effect of general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (C) requirements that a claim with respect to any security authenticated and delivered under the Indenture denominated other than in United States dollars (or a judgment denominated other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (D) governmental authority to limit, delay or prohibit the making of payments outside the United States or in foreign currency or composite currency and (y) that the waiver contained in Section 515 of the Indenture may be deemed unenforceable.
(v) No governmental approval, which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required in connection with, the execution or delivery of each of the Transaction Documents by the Company or the consummation by the Company of the transactions contemplated thereby, except such as may be required by the securities or blue sky laws of the various states, the 1933 Act, the 1934 Act and the 1939 Act and the securities laws of any jurisdiction outside the United States in which the Notes are offered. Such counsel may state that "applicable laws" means the General Corporation Law of the State of Delaware and those laws, rules and regulations of the States of California and New York and the federal laws, rules and regulations of the United States of America, in each case, which, in such counsel's experience, are normally applicable to transactions of the type contemplated by this Agreement and the other Transaction Documents (other than the United States federal securities laws, state and foreign securities or blue sky laws, antifraud laws and the rules and regulations of the NASD), without his having made any special investigation as to the applicability of any other law, rule or regulation, and which are not the subject of a specific opinion herein referring expressly to a particular law or laws; "governmental authorities" means any court, regulatory body, administrative agency or governmental body of the States of California, Delaware or New York or the United States of America having jurisdiction over the Company or any Principal Domestic Subsidiary under "applicable laws"; and "governmental approval" means any consent, approval, license, authorization or validation of, or filing, qualification or registration with, any "governmental authority" required to be made or obtained by the Company pursuant to "applicable laws", other than any consent, approval, license, authorization, validation, filing, qualification or registration which may have become applicable as a result of the involvement of any other party (other than the Company) in the transactions contemplated by this Agreement and the other Transaction Documents or because of such other parties' legal or regulatory status or because of any other facts specifically pertaining to such other parties.
(vi) The Notes have been duly authorized by the Company and, when executed by the Company and authenticated by the Trustee in accordance with the terms of the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee) and issued to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, except (x) as may be subject to or limited by (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally or (B) the effect of general principles of equity (regardless of whether such enforcement is sought in a proceeding in equity or at law) and (y) that the waiver contained in Section 515 of the Indenture may be deemed unenforceable.
(vii) The Registration Statement, including any Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus has become effective under the 1933 Act and the Prospectus shall Indenture has been qualified under the 1939 Act, and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued and no proceedings for that purpose have been filed withinstituted or are pending or contemplated.
(viii) The execution and delivery by the Company of each of the Transaction Documents and the consummation of the transactions contemplated thereby, including the Commission within issuance and sale of the Notes, will not conflict with or constitute a breach of or a default (with the passage of time or otherwise) under (A) the Restated Certificate of Incorporation or Bylaws of the Company, in each case, as amended, (B) any statute, law or regulation to which the Company or any Principal Domestic Subsidiary or any of their respective properties may be subject or (C) any judgment, decree or order, known to such counsel, after reasonable inquiry, of any court or governmental agency or authority entered in any proceeding to which the Company or any Principal Domestic Subsidiary was or is now a party or by which it is bound, except that such counsel may state that the opinion set forth in clause (B) of this paragraph (viii) is limited to those statutes, laws or regulations in effect on the date of such opinion which, in such counsel's experience, are normally applicable time period prescribed for to transactions of the type contemplated by this Agreement and that such filing by, and counsel expresses no opinion as to the securities or Blue Sky laws of the various jurisdictions in compliance with, which the Rules and Regulations and in accordance with Section 4(a), Notes are to be offered.
(ix) The Registration Statement and the Rule 462(b) Registration Statement, if any, shall have become Statement as of their respective effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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 Underwritersdates, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLPProspectus, counsel for as supplemented by the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirmingProspectus Supplement, as of the date of the bring-down letter (orProspectus Supplement, with respect including each Incorporated Document when such Incorporated Document was filed or became effective, or if any such Incorporated Document was amended, when such amendment was filed or became effective, appeared on their face to matters involving changes be appropriately responsive in all material respects to the applicable requirements of the 1933 Act or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus1934 Act, as the case may be, except that in each case such counsel may state that, other than as set forth in clause (x) of this Section 6(b), such counsel assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus and such counsel need not express an opinion as to the financial statements and schedules and other financial data included or incorporated by reference therein or excluded therefrom or as to the Form T-1.
(x) The statements in the Prospectus under the captions "Description of Securities," "Description of Senior Debt Securities" and "Description of the Notes," insofar as they purport to summarize certain provisions of documents specifically referred to therein, fairly summarize such provisions in all material respects.
(xi) Except as set forth in the Prospectus (including the Incorporated Documents), there is not pending or, to the knowledge of such counsel, after reasonable inquiry, threatened any action, suit or proceeding against the Company or any of its subsidiaries before or by any court or governmental agency or body, which is likely (to the extent not covered by insurance) to have a material adverse effect on the consolidated financial condition of the Company and its subsidiaries, taken as a whole.
(xii) To the best of such counsel's knowledge, after reasonable inquiry, there is no contract or document of a date character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as required.
(xiii) To the best of such counsel's knowledge, after reasonable inquiry, the Company is not in violation of its Restated Certificate of Incorporation or Bylaws, in each case, as amended.
(xiv) To the best of such counsel's knowledge, after reasonable inquiry, the execution and delivery of this Agreement and the Indenture by the Company, the issuance and sale of the Notes and the performance by the Company of its obligations under this Agreement, the Indenture and the Notes will not conflict with or constitute a breach of or a default (with the passage of time or otherwise) under any agreement or instrument that is, individually or in the aggregate, material to the Company and its subsidiaries, taken as a whole, to which the Company is a party or by which it is bound. In rendering such opinion such counsel may state that with respect to certain matters he has relied upon advice of other counsel employed by the Company who are more familiar with such matters. In addition, such counsel shall state that he has participated in conferences with officers and other representatives of the Company, outside counsel for the Company, representatives of the independent public accountants for the Company, representatives of the Underwriters and counsel for the Underwriters, at which conferences the contents of the Registration Statement, the Rule 462(b) Registration Statement and Prospectus and related matters were discussed and, 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, the Rule 462(b) Registration Statement or the Prospectus (other than three as set forth in paragraph (3x) business days above) and has not made any independent check or verification thereof, on the basis of the foregoing, nothing has come to such counsel's attention that leads him to believe that either the Registration Statement (including the Incorporated Documents) at the time such Registration Statement became effective, (or if an amendment to the Registration Statement or an Annual Report on Form 10-K has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement and prior to the date of such statement, then at the bring-down lettertime such amendment became effective or at the time of the most recent such filing (to the extent deemed to be incorporated by reference therein), as the conclusions and findings of such firmcase may be), of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (for any Rule 462(b) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, Statement at the Applicable Timetime such Rule 462(b) Registration Statement became effective, as of the date of this Agreement and as of the Closing Date did not include any contained an untrue statement of a material fact and did not omit or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and or that the General Disclosure Package, as of Prospectus (including the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus Incorporated Documents) as of its date and as of the Closing Date, the Prospectus and each amendment Time contained or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any contains an untrue statement of a material fact and did not omit or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, except that such counsel need express no event has occurred which should have been set forth in a supplement or amendment opinion with respect to the Registration Statementsfinancial statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, the representations schedules 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited other financial statements data included or incorporated by reference in the General Disclosure PackageRegistration Statement, any material adverse change in the financial position Rule 462(b) Registration Statement or results of operations of Prospectus or with respect to the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the ProspectusForm T-1.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lc) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and Underwriter shall have received no objection thereto an opinion from Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel to the NASDAQ Global Market.
(m) The Representative shall have received on and Underwriters, dated as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware Time and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Occidental Petroleum Corp /De/)
Conditions of Underwriters’ Obligations. The respective several obligations --------------------------------------- of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties on the part of the Company contained herein, and the Selling Shareholders on the date hereof and at the time of purchase (and the several obligations of the Underwriters at any additional time of purchase are subject to the accuracy of the statements representations and warranties on the part of the Company made in any certificates pursuant to and the provisions hereofSelling Shareholders on the date hereof and at the time of purchase and at such additional time of purchase, to as the case may be), the performance by the Company of its obligations hereunder, and to each of the Company and the Selling Shareholders of their obligations hereunder and to the following additional terms and conditions:
(a) The Registration Statements have become effective under Company shall furnish to you at the Securities Acttime of purchase and at such additional time of purchase, and no stop order suspending as the effectiveness of any Registration Statement or any part thereofcase may be, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the UnderwritersHolme Xxxxxxx & Xxxx, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution purchase or such additional time of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectuspurchase, as the case may be, as of a date not more than three (3) business days prior to the date with reproduced copies for each of the bring-down letter)other Underwriters and in form satisfactory to Xxxxxx Xxxxxx & Xxxxxxx, counsel for the conclusions and findings of such firmUnderwriters, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.stating that:
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority (A) to own its properties and conduct its business as described in the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus Statement and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of (B) to execute and deliver this Agreement and to issue, sell and deliver the Shares as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, herein contemplated;
(ii) since the effective date each of the Initial Registration StatementSubsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the state in which such Subsidiary is incorporated, no event has occurred which should have been set forth with full corporate power and authority to own its properties and to conduct its business as described in a supplement or amendment to the Registration Statements, Statement and the General Disclosure Package or the Prospectus that has not been so set forth therein, Prospectus;
(iii) to their knowledge, as of the Closing Date, the representations and warranties each 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 the Closing Date, and (iv) there has not been, subsequent to the date each of the most recent audited financial statements included Subsidiaries is duly qualified or incorporated licensed to do business by reference and is in good standing as a foreign corporation in each jurisdiction in which it conducts business or owns property and in which the General Disclosure Packagefailure, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly individually or in the aggregate, would involve to be so licensed or qualified could have a material adverse change effect on the properties, assets, operations, business, business prospects or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects other) of the Company and its subsidiaries the Subsidiaries taken as a whole;
(iv) all of the issued and outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable and, except for Continental Ozark as to which the Company owns 65% of the voting capital stock and Lion Oil Company as to which Continental Ozark owns [a 27.75% interest], are owned, directly or indirectly, by the Company free and clear of any pledge, lien, encumbrance, security interest, preemptive right or other claim, and there are no rights, warrants, options or other agreements to acquire or instruments convertible into or exchangeable for any shares of capital stock or other equity interest of any Subsidiary, except as set forth in the Prospectus.;
(iv) Since this Agreement has been duly authorized, executed and delivered by the date Company;
(vi) (a) the Shares, when delivered to and paid for by the Underwriters, will be duly authorized, validly issued, fully paid and nonassessable, and will be free of any pledge, lien, encumbrance, claim or preemptive right other than the Xxxxxxx Xxxxx Preemptive Right; and (b) the certificates for the Shares are in due and proper form and the holders of the latest audited Shares will not be subject to personal liability by reason of being such holders;
(a) the Company has an authorized capitalization as set forth under the heading "Capitalization" in the Registration Statement and the Prospectus, and (b) the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, nonassessable and free of statutory and contractual preemptive rights other than the Xxxxxxx Xxxxx Preemptive Right;
(viii) the capital stock of the Company, including the Shares, conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus;
(ix) the Registration Statement and the Prospectus (except as to the financial statements included in the General Disclosure Package and schedules contained or incorporated by reference therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act;
(x) the Registration Statement has become effective under the Act and, to the best of such counsel's knowledge, no stop order proceedings with respect thereto are pending or threatened under the Act;
(xi) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the issuance or sale of the Shares as contemplated hereby other than registration of the Shares under the Act (except such counsel need express no opinion as to any necessary qualification under the state securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters);
(xii) the execution, delivery and performance of this Agreement by the Company, the issuance and sale of the Shares, the application of the net proceeds thereof as described in the General Disclosure Package as Prospectus and the consummation by the Company of the date hereof, (i) the Company transactions contemplated hereby do not and its subsidiaries shall will not have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insuranceconflict with, or from result in any labor dispute breach of, or court constitute a default under (nor constitute any event which with notice, lapse of time or governmental actionboth would constitute a breach of or default under), order the charter or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt bylaws of the Company or any of its subsidiariesthe Subsidiaries, or any changeprovision of any license, indenture, lease, mortgage, deed of trust, bank loan or any development involving a prospective change, in credit agreement or affecting the business, general affairs, management, financial position, stockholders’ equity other agreement or results of operations of instrument to which the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) Subsidiaries is a party or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunctionthe Subsidiaries or their properties are bound or affected, restraining order or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of applicable to the Company or any of its subsidiaries.the Subsidiaries;
(kxiii) Subsequent to the execution and delivery best of this Agreement there shall not have occurred such counsel's knowledge, neither the Company nor any of the following: Subsidiaries is in breach of or in default under (inor has any event occurred which with notice, lapse of time or both would constitute a breach of or default under) trading any license, indenture, lease, mortgage, deed of trust, bank loan or credit agreement or any other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries or their properties are bound or affected or under any law, regulation or rule or any decree, judgment or order applicable to the Company or any of the Subsidiaries, except for such matters as could not, individually or in securities generally the aggregate, have a material adverse effect on the NASDAQ Global Market properties, assets, operations, business, business prospects or trading condition (financial or other) of the Company and the Subsidiaries taken as a whole;
(xiv) to the best of such counsel's knowledge, after due inquiry, neither the Company nor any of the Subsidiaries has violated any Environmental Laws, the Interstate Commerce Act or the Energy Policy Act of 1992 or any regulation promulgated by the Texas Railroad Commission, or any federal or state law relating to discrimination in the hiring, promotion or pay of employees or any applicable federal or state wages and hours laws, nor any provisions of the Employee Retirement Income Security Act or the rules and regulations promulgated thereunder, which in each case might result in any material adverse effect on the properties, assets, operations, business, business prospects or condition (financial or other) of the Company and the Subsidiaries taken as a whole;
(xv) the Company and each of the Subsidiaries has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits"), including without limitation under any applicable Environmental Laws, the Interstate Commerce Act, the Energy Policy Act of 1992 or under any regulation promulgated by the Texas Railroad Commission, as are necessary to own, lease and operate its respective properties and to conduct its business in the manner described in the Prospectus; to the best of such counsel's knowledge, after due inquiry, the Company and each of the Subsidiaries has fulfilled and performed all of its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such permit, subject in each case to such qualification as may be set forth in the Prospectus; and, except as described in the Prospectus, such permits contain no restrictions that are materially burdensome to the Company or any of the Subsidiaries;
(xvi) all contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement have been so described or filed;
(xvii) except as described in the Registration Statement and the Prospectus, there are no actions, suits or proceedings of which such counsel has knowledge pending or threatened against the Company or any of the Subsidiaries, or any of their respective properties, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency that individually or in the aggregate could result in a judgment, decree or order having a material adverse effect on the properties, assets, operations, business, business prospects or condition (financial or other) of the Company and the Subsidiaries taken as a whole;
(xviii) the documents incorporated by reference in the Registration Statement and Prospectus, when they were filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), complied as to form in all material respects with the Exchange Act (except as to the financial statements and schedules and other financial and statistical data contained or incorporated by reference therein, as to which such counsel need express no opinion);
(xix) to the best of such counsel's knowledge, no person has the right, contractual or otherwise, to cause the Company to issue to it, or register pursuant to the Act, any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment consequence of the Representative, impracticable or inadvisable to proceed with the issue and sale or delivery of the Stock on Shares to the terms and in Underwriters hereunder other than with respect to the manner contemplated in Xxxxxxx Xxxxx Preemptive Right; to the General Disclosure Package and best of such counsel's knowledge, each person who has the Prospectus.
(l) The right, contractual or otherwise, to cause the Company shall have filed a Notification: Listing of Additional Shares with to register pursuant to the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing Act any securities of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, consequence of the persons issue and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished sale of the Shares to the Underwriters a Secretary’s Certificate hereunder either included such securities in the Registration Statement or duly waived such right and each person who has the right, contractual or otherwise, to cause the Company to issue to it any securities of the Company, Company in form consequence of the issue and substance reasonably satisfactory sale of the Shares to counsel for the Underwriters.Underwriters hereunder has duly waived such right;
(pxx) On or prior to the Closing Datestatements in the Registration Statement and the Prospectus under the captions "Business -- Environmental Regulation -- Rate Regulation", the Company shall have furnished to the Representative such further certificates "Description of Capital Stock", "Long-Term Indebtedness" and documents "Shares Eligible For Future Sale", insofar as the Representative 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 are descriptions of laws, regulations and rules, of legal and governmental proceedings or of contracts, agreements, leases and other legal documents, or refer to statements of law or legal conclusions, have been reviewed by such counsel and are accurate in form and substance reasonably satisfactory to counsel for the Underwriters.all material respects;
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and to purchase the closing of the sale of the Stock, Shares hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) (i) The Registration Statements have become effective under the Securities ActProspectus, and no stop order suspending any supplement thereto, have been filed in the effectiveness of manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); the final term sheet contemplated by Section 5(b) hereto and any Registration Statement or any part thereof, preventing or suspending other material required to be filed by the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof Company pursuant to Rule 433(d) shall have been issued filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 and no proceedings for that purpose or pursuant to Section 8A under (ii) any request of the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebyUnderwriters.
(b) None of the Underwriters shall have discovered and disclosed Subsequent to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact whichExecution Time, in the opinion of counsel for the Underwritersor, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreementif earlier, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Registration Statement (exclusive of any amendment thereto), the Disclosure Package and the Prospectus, as the case may be, as Prospectus (exclusive of a date not more than three (3) business days prior to the date of the bring-down letterany amendment thereof), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock occurred: (other than stock option and warrant exercises and stock repurchases in the ordinary course of businessi) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, general affairsproperties, managementnet worth, or results of operations of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), the effect of which, in the sole judgment of the Representatives is so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendments thereto), the Disclosure Package and the Prospectus (exclusive of any supplement thereto); or (ii) any event or development relating to or involving the Company and its subsidiaries or any officer or director of the Company and its subsidiaries which makes any statement made in the Registration Statement, the Disclosure Package or the Prospectus untrue or which, in the opinion of the Company and its counsel or the Representatives and their counsel, requires the making of any addition to or change in the Disclosure Package in order to state a material fact required by the Securities Act or any other law to be stated therein, or necessary in order to make the statements therein not misleading, if amending or supplementing the Disclosure Package to reflect such event or development would, in the opinion of the Representatives, adversely affect the market for the Shares.
(c) The Representatives shall have received on the Closing Date and, if applicable, the Option Closing Date an opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the Company, dated as of such date and addressed to the Representatives, to the effect set forth in Exhibit B-1 and Exhibit B-2 and in the form and substance satisfactory to the Representatives.
(d) The Representatives shall have received on the Closing Date and, if applicable, the Option Closing Date an opinion of Hunton Xxxxxxx Xxxxx LLP, counsel for the Underwriters, dated as of such date and addressed to the Representatives with respect to such matters as the Underwriters may request.
(e) The Representatives shall have received a letter addressed to the Underwriters and dated as of the date hereof, the Closing Date and, if applicable, the Option Closing Date from each of Deloitte & Touche LLP and Ernst & Young LLP, independent registered public accounting firms, substantially in the forms heretofore approved by the Underwriters; provided that the letters delivered on the Closing Date or the Option Closing Date shall use a “cut-off” date no more than three Business Days prior to the Closing Date or the Option Closing Date, as the case may be.
(f) (A) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Commission at or prior to the Closing Date or the Option Closing Date; (B) there shall not have been any change in the capital stock of the Company nor any material increase in the short-term or long-term debt (including any off-balance sheet activities or transactions) of the Company and its subsidiaries (other than in the ordinary course of business) from that set forth or contemplated in the Registration Statement, the Disclosure Package or the Prospectus (or any amendment or supplement thereto); (C) there shall not have been, since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), except as may otherwise be stated in the Registration Statement, the Disclosure Package and Prospectus (or any amendment or supplement thereto), any material adverse change in the condition (financial positionor other), stockholders’ equity business, prospects, properties, net worth or results of operations of the Company or its subsidiaries; (D) the Company and its subsidiaries shall not have any liabilities or obligations (financial or other), direct or contingent (whether or not in the ordinary course of business), that are material to the Company or its subsidiaries, otherwise other than as set forth those reflected in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, Registration Statement or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
Prospectus (lor any amendment or supplement thereto); and (E) The all the representations and warranties of the Company and the Operating Partnership contained in this Agreement shall have filed a Notification: Listing be true and correct at and as of Additional Shares with the NASDAQ Global Market Execution Time and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence and the Option Closing Date as if made at and as of such time or on and as of such date, and the good standing Representatives shall have received a certificate, dated the Closing Date and the Option Closing Date and signed by either the chief executive officer or president and the chief financial officer of the Company (or such other officers as are acceptable to the Representatives), confirming the conditions set forth in the State of Delaware this Section 8(f) and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictionsSection 8(g) hereof.
(ng) The Representative Company shall not have received failed at or prior to the written agreementsClosing Date and the Option Closing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder or under the Deposit Agreement, substantially in at or prior to the form of Exhibit A hereto, of Closing Date and the persons and entities listed in Exhibit B to this AgreementOption Closing Date.
(oh) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities 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.
(i) The Company shall have completed all required filings with the NYSE and other necessary actions in order to cause the Shares to be listed and admitted and authorized for trading on the NYSE, subject to notice of issuance.
(j) The Company shall have furnished or caused to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have be furnished to the Representative Representatives such further certificates and documents as the Representative may reasonably requestRepresentatives shall have requested. All such opinions, letterscertificates, evidence letters and certificates mentioned above or elsewhere in this Agreement shall be deemed to other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance reasonably satisfactory to the Representatives and their counsel. Any certificate or document signed by any officer of the Company or the general partner of the Operating Partnership and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by the Company or the Operating Partnership, as the case may be, to the Underwriters as to the statements made therein. If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled by the Representatives at, or at any time prior to, the Closing Date or the Option Closing Date. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. With respect to the Closing Date and the Option Closing Date, the documents required to be delivered by this Section 8 shall be delivered at the offices of Hunton Xxxxxxx Xxxxx LLP, Attn: Xxxxx X. Xxxxxx, Esq., counsel for the Underwriters, at Riverfront Plaza, East Tower, 000 Xxxx Xxxx Xxxxxx, Richmond, Virginia 23219 on or prior to such date.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the such Closing Date, of the representations and warranties of the Company and the Selling Shareholders contained herein, to the accuracy of the statements of the Company and the Selling Shareholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholders of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a4(I)(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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 and the Selling Shareholders shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, Rxxx Xxxxx LLP shall have furnished to the Representative such counsel’s written opinion and negative assurance statementopinion, each as counsel to the Company, addressed to the Underwriters and dated the such Closing Date, in form and substance reasonably satisfactory as agreed to by Rxxx Xxxxx LLP and counsel to the RepresentativeUnderwriters.
(e) Rxxx Xxxxx LLP shall have furnished to the Representative such counsel’s negative assurance statement, as counsel to the Company, addressed to the Underwriters and dated such Closing Date, in form and substance as agreed to by Rxxx Xxxxx LLP and counsel to the Underwriters.
(f) Rxxx Xxxxx LLP shall have furnished to the Representative such counsel’s written opinion, as counsel to the Selling Shareholders, addressed to the Underwriters and dated such Closing Date, in form and substance as agreed to by Rxxx Xxxxx LLP and counsel to the Underwriters.
(g) The Representative shall have received from Xxxxxxx Procter Ellenoff Gxxxxxxx & Schole LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the such Closing Date, with respect to such matters as the Underwriters Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fh) At the time of the execution of this Agreement, the Representative shall have received from Ernst KMJ Cxxxxx & Young Company LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(gi) On the effective date of any post-effective amendment to any Registration Statement and on the such Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst KMJ Cxxxxx & Young Company LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Underwriters concurrently with the execution of this Agreement pursuant to paragraph (fh) of this Section 6.
(hj) The Company shall have furnished to the Representative a certificate, dated the such Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the such Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus Prospectus, that has not been so set forth therein, therein (iii) to their knowledge, as of the such Closing Date, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiariesand the Subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries the Subsidiaries taken as a whole, except as set forth in the Prospectus.
(ik) Each Selling Shareholder shall have furnished to the Representative on such Closing Date a certificate, dated the such date, signed by, or on behalf of, such Selling Shareholder stating that the representations, warranties and agreements of such Selling Shareholder contained herein are true and correct as of such Closing Date and that such Selling Shareholder has complied with all agreements contained herein to be performed by such Selling Shareholder at or prior to such Closing Date.
(l) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company and its subsidiaries nor any of the Subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiariesthe Subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiariesand the Subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) l), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jm) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kn) [Intentionally Omitted].
(o) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in any of the Company’s securities shall have been suspended or materially limited by the Commission or by the NASDAQ Capital Market, or trading in securities generally on the New York Stock Exchange, NASDAQ Capital Market, NASDAQ Global Market, NASDAQ Global Select Market or the NYSE MKT 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(mp) The Representative shall have received on and as of the such Closing Date satisfactory evidence of the good standing of the Company company and each of the Subsidiaries in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as the State of Delaware and existence as a foreign corporation in the State of WashingtonRepresentative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(nq) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(or) The Company shall have furnished to the Underwriters Representative a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(ps) If required in accordance with applicable listing rules of the NASDAQ Capital Market, the Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Capital Market and shall have received no objection thereto from the NASDAQ Capital Market.
(t) On or prior to the such Closing Date, the Company and the Selling Shareholders shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact whichthat, in the opinion of counsel for the Underwriters, is material or omits to state any fact whichthat, in the 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 General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact whichthat, in the opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration StatementsStatement, the General 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.
(d) Fenwick Axxxxx & West Bird LLP, counsel for to the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters Representative and dated the Closing Date, each in form and substance reasonably satisfactory to the Representative.
(e) Axxxxx & Bird LLP, counsel for the Company with respect to intellectual property matters, shall have furnished to the Representative such counsel’s written opinion, in form and substance reasonably satisfactory to the Representative.
(f) The Representative shall have received from Lxxxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fg) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP Mxxxx Xxxxxxx XxXxxx P.C. a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 StatementsStatement, the General Disclosure Package and the Prospectus.
(gh) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP Mxxxx Xxxxxxx XxXxxx P.C. addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 65.
(hi) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer or President and its Chief Financial Officer stating in their respective capacities as officers of the Company on behalf of the Company that (i) such officers have carefully examined no stop order suspending the effectiveness of the Registration StatementStatement (including, the General Disclosure Packagefor avoidance of doubt, any Permitted Free Writing Prospectus and the Prospectus andRule 462(b) Registration Statement), in their opinion, the Registration Statements and each or any post-effective amendment thereto, at shall be in effect and no proceedings for such purpose shall have been instituted or, to their knowledge, threatened by the Applicable TimeCommission, as of (ii) for the period from and including the date of this Agreement through and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of including the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that there has not been so set forth thereinoccurred any Material Adverse Change, (iii) to their knowledgeknowledge after reasonable investigation, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of and its subsidiariessubsidiaries taken as a whole, or any change or development that, singularly or in the aggregate, would reasonably be expected to involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(ij) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company and nor its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases issuance of options or other securities in the ordinary course of businessbusiness and pursuant to the Company’s equity incentive or stock purchase plans described in the General Disclosure Package and the Prospectus or Common Stock issued pursuant to the exercise of warrants or upon the exercise of stock options previously outstanding under the Company’s stock option plans and the issuance of Common Stock pursuant to employee stock purchase plans) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of and its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jk) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of and its subsidiaries.
(kl) 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 NASDAQ Global New York Stock Exchange, Nasdaq Capital Market or the NYSE American LLC 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lm) The Company shall have filed a Notification: Listing of Additional Shares form with the NASDAQ Global Nasdaq Capital Market and shall have received no objection thereto from the NASDAQ Global Nasdaq Capital Market.
(mn) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of WashingtonDelaware, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictionsjurisdiction.
(no) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(op) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters and customary for the type of offering contemplated by this Agreement.
(q) The Company shall have furnished to the Representative a Certificate of the Chief Financial Officer of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pr) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the such Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, any free writing prospectus, the Prospectus or any Permitted Free Writing Time of Sale Disclosure Package, the Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, any Preliminary Prospectus, each Issuer Free Writing Prospectus free writing prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations Securities Act and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General Time of Sale Disclosure Package, any Issuer Free Writing Prospectus free writing prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration StatementsConversion Stock, the General Registration Statement, the Time of Sale Disclosure Package, each Issuer Free Writing Prospectus free writing prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West On the Closing Date, the Representative shall have received the opinion letter and negative assurance letter of Xxxxxx LLP, counsel for the Company, shall have furnished to dated as of such date, the Representative such counsel’s written opinion forms of which are attached as Exhibit II-1 and negative assurance statementExhibit II-2, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representativerespectively.
(e) The On the Closing Date, the Representative shall have received from the opinion of the General Counsel of the Company, dated as of such date, the form of which is attached as Exhibit III.
(f) On the Closing Date the Representative shall have received the opinion and negative assurance letter of Xxxxxxx Procter LLP, counsel for the Underwriters in connection with the offer and sale of the Stock, in form and substance satisfactory to the Underwriters, dated as of such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such mattersdate.
(fg) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules rules and Regulations and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, 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 StatementsStatement, the General Time of Sale Disclosure Package and the Prospectus.
(gh) On the effective date of any post-effective amendment to any the Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Time of Sale Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(hi) The Company shall have furnished to the Representative a certificate, dated the such Closing Date, of its Chief Executive Officer Chairman of the Board or President and its Chief Financial Officer stating on behalf of the Company, that (i) such officers have carefully examined no stop order suspending the effectiveness of the Registration StatementStatement (including, the General Disclosure Packagefor avoidance of doubt, any Permitted Free Writing Prospectus and the Prospectus andRule 462(b) Registration Statement), in their opinion, the Registration Statements and each or any post-effective amendment thereto, at shall be in effect and no proceedings for such purpose shall have been instituted or, to their knowledge, threatened by the Applicable TimeCommission, as of (ii) for the period from and including the date of this Agreement through and as of the Closing Date 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 not misleadingincluding such date, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that there has not been so set forth thereinoccurred any Material Adverse Change, (iii) to their knowledgethe representations, as of the Closing Date, the representations warranties and warranties covenants of the Company set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date, and (iv) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectussuch date.
(ij) Since the date of the latest audited financial statements included in the General Time of Sale Disclosure Package or incorporated by reference in the General Time of Sale Disclosure Package as of the date hereof, (i) neither the Company and nor any of its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Time of Sale Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of and its subsidiaries, otherwise than as set forth in the General Time of Sale Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) j), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Time of Sale Disclosure Package.
(jk) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kl) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company’s corporate credit rating or the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization,” as that 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 (other than an announcement with positive implications of a possible upgrading), the Company’s corporate credit rating or the rating of any of the Company’s debt securities.
(m) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in any of the Company’s securities shall have been suspended or materially limited by the Commission or by The NASDAQ Capital Market, or trading in securities generally on the New York Stock Exchange, NASDAQ Global Select Market, NASDAQ Global Market, NASDAQ Capital Market or the NYSE Amex 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Time of Sale Disclosure Package and the Prospectus.
(ln) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Capital Market and shall have received no objection thereto from the NASDAQ Global Capital Market.
(mo) The Representative shall have received on and as of the such Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of incorporation and its good standing as foreign entities in such other jurisdictions as the State of Delaware and existence as a foreign corporation in the State of WashingtonRepresentative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities authorities of such jurisdictions.
(np) The Representative shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons executive officers and entities directors of the Company listed in Exhibit B Schedule D to this Agreement.
(oq) The Company shall have furnished to the Underwriters Representative a certificate, dated such Closing Date, of its Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pr) The Company shall have furnished to the Representative a certificate, dated such Closing Date, of its Chief Business Officer, substantially in the form of Exhibit IV hereto.
(s) Prior to the Closing Date, the Company shall have filed with the Secretary of State of the State of Delaware the Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock, substantially in the form as attached to Exhibit V hereto.
(t) On or prior to the such Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably requestrequest and are customary for the type of offering contemplated by this Agreement. 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the each Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, Xxxxxxxxxx Xxxxxxx LLP shall have furnished to the Representative Representatives such counsel’s written opinion and negative assurance statementletter, each as counsel to the Company, addressed to the Underwriters and dated the as of such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, to the effect of Exhibit III.
(e) King & Spalding, LLP shall have furnished to the Representatives such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Underwriters and dated as of such Closing Date, in form and substance reasonably satisfactory to the Representatives, to the effect of Exhibit IV.
(f) The Representative Representatives shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the as of such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for enabling them to pass upon such matters.
(fg) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young Xxxxx Xxxxxxxx LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance reasonably satisfactory to the Representative Representatives (i) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(gh) On the effective date of any post-effective amendment to any Registration Statement and on the such Closing Date, the Representative Representatives shall have received a letter (the “bring-down letter”) from Ernst & Young Xxxxx Xxxxxxxx LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Representatives concurrently with the execution of this Agreement pursuant to paragraph (fg) of this Section 6.
(hi) The Company shall have furnished to the Representative Representatives a certificate, dated the such Closing Date, of its Chief Executive Officer and its Chief Financial Officer principal financial officer stating that (i) such officers have carefully examined reviewed the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement their respective effective dates and as of the such Closing Date Date, 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth thereinProspectus, (iii) to their the Company’s knowledge, as of the such Closing Date, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of and its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(ij) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofPackage, (iy) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (iiz) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of and its subsidiaries, otherwise than as set forth in the General Disclosure PackagePackage or the Prospectus, the effect of which, in any such case described in clause (iy) or (iiz) of this paragraph (i) j), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jk) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kl) 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, The NASDAQ Global Market or the NYSE MKT LLC 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lm) The Company Exchange shall have filed a Notification: Listing approved the Stock for listing therein, subject only to official notice of Additional Shares with the NASDAQ Global Market issuance and evidence of satisfactory distribution.
(n) The Representatives shall have received no objection thereto from the NASDAQ Global Marketwritten agreements, substantially in the form of Exhibit I hereto, of the officers, directors, stockholders, optionholders and warrantholders of the Company.
(mo) The Representative Representatives shall have received on and as of the such Closing Date satisfactory evidence of the good standing (or the equivalent thereof, as applicable) of the Company and its subsidiaries in their respective jurisdictions of organization and their good standing (or the State of Delaware and existence equivalent thereof, as a applicable) as foreign corporation entities in such other jurisdictions as the State of WashingtonRepresentatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the such Closing Date, the Company shall have furnished to the Representative Representatives such further certificates and documents as the Representative Representatives 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and hereunder as to the closing of the sale of the Stock, Securities to be delivered at each Closing Date are subject to the accuracy, when made and as of the Applicable Time and on the such Closing Date, of the representations and warranties of the Company and the Selling Shareholder contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, herein and to the performance by the Company and the Selling Shareholder of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Each of the Registration Statements have Statement and the ADS Registration Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or the ADS Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement, the ADS Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b5(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; of this Agreement and FINRA shall have raised no unresolved objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick Xxxxxxxx & West LLP, counsel for the Company, Xxxxxxxx LLP shall have furnished to the Representative Representatives such counsel’s written opinion and negative assurance statementletter, as counsel to the Company, addressed to the Underwriters and each dated as of such Closing Date, in the form and substance previously agreed upon and satisfactory to the Representatives.
(c) Freshfields Bruckhaus Xxxxxxxx LLP shall have furnished to the Representatives such counsel’s written opinion, as Belgian counsel to the Company, addressed to the Underwriters and dated the such Closing Date, in the form and substance reasonably previously agreed upon and satisfactory to the RepresentativeRepresentatives.
(ex) The Representative Xxxxxx & Loeff BV shall have received from Xxxxxxx Procter LLP, counsel for furnished to the Underwriters, Representatives such counsel’s written opinion and negative assurance statementopinion, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such tax counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the UnderwritersCompany, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished substance previously agreed upon and satisfactory to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentatives.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the such Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a4(I)(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and the FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, LLP shall have furnished to the Representative Representatives such counsel’s written opinion and negative assurance statementopinion, each as counsel to the Company, addressed to the Underwriters and dated the such Closing Date, in substantially the form and substance reasonably satisfactory to the Representativeset forth on Exhibit II.
(e) Xxxxxxx Xxxxx, Esq. shall have furnished to the Representatives such counsel’s written opinion, as regulatory counsel to the Company, addressed to the Underwriters and dated such Closing Date, in the form set forth on Exhibit III.
(f) Osler, Xxxxxx & Harcourt LLP shall have furnished to the Representatives such counsel’s written opinion, as Canadian counsel to the Company, addressed to the Underwriters and dated such Closing Date, in substantially the form set forth on Exhibit IV.
(g) The Representative Representatives shall have received from Xxxxxx & Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fh) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst Deloitte & Young Touche LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Representatives (i) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(gi) At the time of the execution of this Agreement, the Representatives shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representatives (i) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information incorporated by reference in the Registration Statements, the General Disclosure Package and the Prospectus.
(j) On the effective date of any post-effective amendment to any Registration Statement and on the such Closing Date, the Representative Representatives shall have received a letter (the “bring-down letter”) from Ernst Deloitte & Young Touche LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Representatives concurrently with the execution of this Agreement pursuant to paragraph (fh) of this Section 6.
(hk) The Company shall have furnished to the Representative Representatives a certificate, dated the such Closing Date, of its Chief Executive Officer Chairman of the Board or President and its Chief Financial Officer on behalf of the Company stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment theretoStatement, at the Applicable Time, as of the date of this Agreement Time and as of the such Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that which has not been so set forth thereinforth, (iii) to the best of their knowledge, as of the such Closing Date, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of and its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(il) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company and nor any of its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of and its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) l), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jm) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially be reasonably expected to materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially be reasonably expected to materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kn) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company’s corporate credit rating or the rating accorded the Company’s debt securities 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 (other than an announcement with positive implications of a possible upgrading), the Company’s corporate credit rating or the rating of any of the Company’s debt securities.
(o) 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 NASDAQ New York Stock Exchange, Nasdaq Global Market 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lp) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative Representatives shall have received on and as of the such Closing Date satisfactory evidence of the good standing of the Company, the Domestic Subsidiaries and the Foreign Subsidiary in their respective jurisdictions of organization and the good standing of the Company as a foreign entity in the States of California, Illinois and Washington and of Sonamed Corporation in the State of Delaware and existence as a foreign corporation in the State of WashingtonMassachusetts, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(nq) The Representative Representatives shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons officers and entities directors of the Company listed in Exhibit B Schedule D to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pr) On or prior to the such Closing Date, the Company shall have furnished to the Representative Representatives such further certificates and documents as the Representative Representatives 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time of Sale and on the such Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become Statement is effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations shall have been received, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a4(b), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the StockSecurities, the Registration StatementsStatement, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick Cxxxxxxxx & West LLP, counsel for the Company, Bxxxxxx LLP shall have furnished to the Representative Representatives such counsel’s written opinion and negative assurance statementopinion, each as special counsel to the Company, addressed to the Representatives on behalf of the Underwriters and dated the such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives and substantially as set forth on Exhibit II hereto.
(e) Pxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, shall have furnished to the Representatives such counsel’s written opinion, addressed to the Representatives on behalf of the Underwriters and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives and substantially as set forth on Exhibit III hereto.
(f) Txxx Xxxxxxx, Vice President, Patents, shall have furnished to the Representatives such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Representatives on behalf of the Underwriters and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives and substantially as set forth on Exhibit IV hereto.
(g) Kxxxxx Xxxxxxxx L.L.P. shall have furnished to the Representatives such counsel’s written opinion, as Washington State counsel to the Company, addressed to the Representatives on behalf of the Underwriters and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives and substantially as set forth on Exhibit V hereto.
(h) The Representative Company shall have furnished to the Representatives a certificate, dated such Closing Date, of its Chairman and Chief Executive Officer and its Chief Regulatory Officer and Vice President, Regulatory Affairs and Quality Systems in form and substance reasonably satisfactory to the Representatives and substantially as set forth on Exhibit VI hereto.
(i) The Representatives shall have received from Xxxxxxx Procter Lxxxxx & Wxxxxxx LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fj) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Representatives (i) confirming that they are an independent registered accounting firm with respect to the Company and its Subsidiaries within the meaning of the Securities Act and the Rules and Regulations and rules and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, 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 StatementsStatement, the General Disclosure Package and the Prospectus.
(gk) On the effective date of any post-effective amendment to any the Registration Statement and on the such Closing Date, the Representative Representatives shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Representatives concurrently with the execution of this Agreement pursuant to paragraph (fi) of this Section 6.
(hl) The Company shall have furnished to the Representative Representatives a certificate, dated the such Closing Date, of its Chairman of the Board and Chief Executive Officer and its Chief Financial Officer Vice President, General Counsel and Secretary stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements Statement and each amendment thereto, at the Applicable TimeTime of Sale, as of the date of this Agreement and as of the such Closing Date 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 therein, in light of the circumstances under which they were made, not misleading, and the General Disclosure Package, as of the Applicable Time of Sale and as of the such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration StatementsStatement, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to the best of their knowledgeknowledge after reasonable investigation, as of the such Closing Date, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of and its subsidiariesSubsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries Subsidiaries taken as a whole, except as set forth in the Prospectus; it being understood that the certifications provided by the Vice President, General Counsel and Secretary pursuant to this Section 6(l) will exclude the financial statements and the notes thereto, the financial schedules and other financial data and information included or incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus.
(im) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company and nor any of its subsidiaries Subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) other than as disclosed in the General Disclosure Package there shall not have been any change in the capital stock or long-term debt of the Company or any of its Subsidiaries (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt business and repayments of the Company or any of its subsidiariesexisting indebtedness), or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholdersshareholders’ equity or results of operations of the Company or any of and its subsidiariesSubsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) m), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock Securities on the terms and in the manner contemplated in the General Disclosure Package.
(jn) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock Securities or materially and adversely affect or potentially could be reasonably expected to materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock Securities or materially and adversely affect or potentially could reasonably be expected to materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(ko) 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 NASDAQ Global Market New York Stock Exchange, the Exchange or the NYSE American LLC 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such), in the case of clauses (i), (ii), (iii) and (iv) above, so as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery of the Stock Securities on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lp) The Company An application for the listing of the Conversion Shares shall have filed a Notification: Listing of Additional Shares with been submitted to the NASDAQ Global Market Exchange, and the Exchange shall have received no objection thereto from the NASDAQ Global Marketnot raised any objections to it.
(mq) The Representative Representatives shall have received on and as of the 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 State of Delaware and existence as a foreign corporation in the State of WashingtonRepresentatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities governmental authorities of such jurisdictions.
(nr) The Representative Representatives shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons officers and entities directors of the Company listed in Exhibit B Schedule D to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(ps) On or prior to the such Closing Date, the Company shall have furnished to the Representative Representatives such further certificates and documents as the Representative Representatives may reasonably request.
(t) The Indenture shall have been executed and delivered by each party thereto and an executed copy thereof shall have been provided to the Representatives.
(u) The Securities shall be eligible for clearance and settlement through DTC.
(v) No event that would be a “default” or “event of default” under the Indenture exists.
(w) No event has occurred that would, if the Securities were outstanding, require an adjustment to the conversion rate of the Securities pursuant to the Indenture. 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Omeros Corp)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick Xxxxxx Xxxxxxx Xxxxxxxx & West LLPXxxxxx, counsel for the Company, P.C. shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each as counsel to the Company, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentative and set forth on Exhibit C hereto.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative Cowen shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative Cowen shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative Cowen such further certificates and documents as the Representative Cowen 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time date hereof and on the Closing Date (as if made at the Closing Date), of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Registration Statements Prospectus shall have become effective under been filed with the Securities ActCommission in a timely fashion in accordance with Section 4(a) hereof; all filings (including, without limitation, the Final Term Sheet) required by Rule 424(b) or Rule 433 of the Rules and Regulations shall have been made within the time periods prescribed by such Rules, and no such filings will have been made without the consent of the Representatives; no stop order suspending the effectiveness of any the Registration Statement or any part thereofamendment or supplement thereto, preventing or suspending the use of any Base Preliminary Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification of the Notes for offering or sale in any part thereof jurisdiction shall have been issued and issued; no proceedings for that purpose the issuance of any such order shall have been initiated or threatened pursuant to Section 8A under of the Securities Act Act; no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto shall have been initiated or, to received by the Company’s knowledge, threatened by ; and any request of the Commission, and all requests Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been disclosed to the Representatives and complied with to the Representatives’ reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebysatisfaction.
(b) None of No Underwriter shall have been advised by the Underwriters Company, or shall have discovered and disclosed to the Company on or prior to Company, that the Closing Date that Registration Statement, the most recent Preliminary Prospectus, the Prospectus, any Registration Statement Issuer Free Writing Prospectus or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of the Representatives or of counsel for to the Underwriters, is material material, or omits to state any fact which, in the opinion of such counselthe Representatives or of counsel to the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident The Representatives shall have received from Xxxxx Xxxxx LLP, counsel to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLPopinion or opinions, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and Underwriters, dated the Closing Date, Date and in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing DateRepresentatives, with respect to such the Notes, Indenture, Registration Statement, Prospectus and Disclosure Package and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) At the time of the execution of this Agreement, the Representative The Representatives shall have received from Ernst & Young LLP a letterXxxxxxx Xxxxx LLP, counsel for the Company, the opinion or opinions, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given and substantially in the General Disclosure Package and the Prospectus, as the case may be, as form of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6Annex A hereto.
(he) The Company Representatives shall have furnished to the Representative received a certificate, dated the Closing Date, of its signed by the Chief Executive Officer of the Company and its by the Chief Financial Officer stating that or the Chief Accounting Officer of the Company to the effect that: (i) the representations and warranties of each of the Company in this Agreement are true and correct, as if made at and as of the Closing Date, and each of the Company has complied with all the agreements and satisfied all the conditions on its part to be complied with or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for any such officers purpose have been initiated or, to the knowledge of such officers, threatened; and the Commission has not notified the Company of any objection to the use of the form of Registration Statement or any post-effective amendment thereto; (iii) all filings required by Rule 424(b) or Rule 433 of the Rules and Regulations have been made within the time periods prescribed by such Rules; (iv) the signers of such certificate have carefully examined the Registration Statement, the General most recent Preliminary Prospectus, the Disclosure PackagePackage and the Prospectus, and any Permitted Free Writing amendments or supplements thereto (including any documents incorporated or deemed to be incorporated by reference into the most recent Preliminary Prospectus and the Prospectus Prospectus), and, in their opinion, the Registration Statements and each amendment theretoStatement as of the Effective Date, at the Disclosure Package, as of the Applicable Time, and the Prospectus, as of the date of this Agreement and as of its date, did not and, on the Closing Date did Date, do not include any untrue statement of a material fact and did not or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, and ; (v) since the General Disclosure Package, as initial Effective Date of the Applicable Time and as of the Closing DateRegistration Statement, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each there has occurred no event required to be set forth in an amendment or supplement thereto, as of to the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event the most recent Preliminary Prospectus or the Prospectus which has occurred which should have not been so set forth in a supplement and there has been no document required to be filed under the Securities Act and the Rules and Regulations or amendment the Exchange Act and the rules and regulations thereunder that upon such filing would be deemed to be incorporated by reference into the Registration StatementsStatement, the General Disclosure Package most recent Preliminary Prospectus or the Prospectus that has not been so set forth thereinfiled; and (vi) no event contemplated by Section 6(f) hereof has occurred.
(f) Except as described in the most recent Preliminary Prospectus and the Prospectus, (iiii) to their knowledge, as of the Closing Date, the representations and warranties of neither the Company in this Agreement are true and correct and the Company has complied with all agreements and satisfied all conditions on nor any of its part to be performed or satisfied hereunder at or prior to the Closing DateSubsidiaries shall have sustained, and (iv) there has not been, subsequent to since the date of the most recent latest audited financial statements included or incorporated by reference in the General Disclosure Packagemost recent Preliminary Prospectus, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and decree or (ii) since such date there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, Subsidiaries or any change, or any development involving a prospective change, in or affecting the businesscondition (financial or otherwise), general affairs, management, financial positionresults of operations, stockholders’ equity equity, properties, business or results of operations prospects of the Company or any of and its subsidiaries, otherwise than Subsidiaries taken as set forth in the General Disclosure Packagea whole, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) ), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery offering of the Stock Notes or on the terms and in the manner contemplated in the General Disclosure PackageProspectus.
(g) Concurrently with the execution of this Agreement, the Representatives shall have received from Deloitte & Touche LLP, the Company’s independent registered public accounting firm, a “comfort” letter (the “initial comfort letter”) addressed to the Representatives on behalf of the Underwriters, dated the date hereof, 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 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.
(h) The Representatives shall have received a “bring-down comfort” letter (the “bring-down comfort letter”) from Deloitte & Touche 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 three days prior to the date of the bring-down comfort letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial comfort letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial comfort letter.
(i) Prior to or on the Closing 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.
(j) No action Subsequent to the execution and delivery of this Agreement, (i) there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, properties, management, business or prospects of the Company and its subsidiaries, taken as a whole, (ii) no downgrading shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent occurred in the issuance or sale of rating accorded to the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations debt securities of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature Subsidiaries by any federal or state court “nationally recognized statistical rating organization” (as that term is defined in Rule 436(g)(2) of competent jurisdiction the Rules and Regulations), and (iii) no such organization shall have been issued which would prevent the issuance publicly announced that it has any such debt securities under surveillance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesreview with possible negative implications.
(k) Subsequent to the execution and delivery of this Agreement Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the NASDAQ Global Market 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 suspended or materially limited, limited or the settlement of such trading generally shall have been materially disrupted or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a banking moratorium shall have been declared by Federal federal or state authorities or authorities; (iii) a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesshall have occurred, (iiiiv) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, States or there shall have been a declaration of a national emergency or war by the United States States; or (ivv) there shall have occurred such a material adverse any other calamity or crisis or change in general economic, political or financial conditions 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 judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery offering of the Stock Notes or on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request. All opinions, letterscertificates, evidence letters and certificates mentioned above or elsewhere documents referred to in this Agreement shall be deemed to Section 6 will be in compliance with the provisions hereof of this Agreement only if they are satisfactory in form and substance reasonably satisfactory to the Representatives and to counsel for the Underwriters. The Company will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, Date of the representations and warranties of the Company Partnership contained herein, to the performance by the Partnership of its obligations hereunder, to the accuracy of the statements of the Company Partnership made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunderhereto, and to each of the following additional terms and conditions:
(a) The Registration Statements Prospectus shall have become effective under been timely filed with the Securities Act, Commission; any material required to be filed by the Partnership pursuant to Rule 433(d) of the Rules and Regulations shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Partnership shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of any the Registration Statement or any part thereof, thereof or preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, ; no notice pursuant to Rule 401(g)(2) of the Rules and all requests for additional information on the part Regulations shall have been received; any request of the Commission (to be included or incorporated by reference for inclusion of additional information in the Registration Statements Statement or the Prospectus or otherwise) otherwise shall have been disclosed to the Underwriters and complied with to the reasonable satisfaction of the Representativetheir satisfaction; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus Commission shall not have been filed with, notified the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no Partnership of any objection to the fairness and reasonableness use of the terms form of this Agreement or the transactions contemplated herebyRegistration Statement.
(b) None of the Underwriters shall have discovered All partnership and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material limited liability company proceedings and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings other legal matters incident to the authorization, form execution and validity delivery of each of this Agreementthe Debt Documents, the Stockauthorization, execution and filing of the Registration Statement, the Registration Statements, the General Disclosure Package, each Prospectus and any Issuer Free Writing Prospectus Prospectus, and all other legal matters relating to the Prospectus Debt Documents and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(dc) Fenwick Xxxxxx & West LLP, counsel for the Company, Xxxxxxx LLP shall have furnished to the Representative such counsel’s Underwriters its written opinion opinions, including its tax opinion, and negative assurance statementletter, each as counsel to the General Partner and the Partnership, addressed to the Underwriters and dated the Closing Date, in the form and substance reasonably satisfactory to the RepresentativeManagers and their counsel.
(ed) The Representative Underwriters shall have received from Hunton Xxxxxxx Procter Xxxxx LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the Closing Date, with respect to such the sale of the Notes and other related matters as the Underwriters may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) At the time of the execution of this Agreement, the Representative Underwriters shall have received from Ernst & Young LLP a letter (the “initial letter, addressed to the Underwriters, executed and dated such date”), in form and substance satisfactory to the Representative Managers, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered accounting firm with respect to the Company public accountants within the meaning of the Securities Act and are in compliance with the Rules applicable rules and Regulations requirements adopted by the Commission and the PCAOB and is 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 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 Time of Sale Prospectus and the Prospectus, as of a date not more than three (3) days prior to the date hereof), the conclusions and findings of such firm, of firm with respect to the type financial information and other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters, underwriters in connection with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statements, the General Disclosure Package and the Prospectusregistered public offerings.
(gf) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative Underwriters shall have received from Ernst & Young LLP a letter (the “bring-down letter”) from Ernst & Young LLP ), in form and substance satisfactory to the Managers, addressed to the Underwriters and dated the Closing Date confirmingDate, (i) confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the PCAOB and is 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 General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the its conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its the initial letter delivered to and (iii) confirming in all material respects the Representative concurrently with conclusions and findings set forth in the execution of this Agreement pursuant to paragraph (f) of this Section 6initial letter.
(hg) The Company On the Closing Date, the General Partner shall have furnished to the Representative Underwriters a certificate, dated the Closing Date, Date of its Chief Executive Officer and its Chief Financial Officer stating that that:
(i) the representations, warranties and agreements of the Partnership in this Agreement are true and correct on and as of the Closing Date, and the Partnership has complied with all the agreements contained herein and satisfied all the conditions to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) the Prospectus has been timely filed with the Commission; 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 officers, threatened by the Commission; no notice pursuant to Rule 401(g)(2) of the Rules and Regulations has been received; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise has been disclosed to the Underwriters and complied with; and the Commission has not notified the Partnership of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto;
(iii) they have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus Time of Sale Prospectus, and, in their opinion, (A) (1) the Registration Statements and each amendment thereto, at the Applicable TimeStatement, as of the Effective Date, (2) the Prospectus, as of its date and on the Closing Date, and (3) the Time of this Agreement and Sale Prospectus, as of the Closing Date Time of Sale, did not include and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact (i) solely in the case of the Registration Statement required to be stated therein or (ii) necessary to make the statements therein not misleading, and misleading (in the General Disclosure Package, as case of the Applicable Prospectus or the Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements thereinSale Prospectus, in the light of the circumstances in under which they such statements were made), not misleadingexcept, in the case of the Time of Sale Prospectus, that the price of the Notes and disclosures directly relating thereto are included in the Prospectus, and (iiB) since the effective date of the Initial Registration StatementEffective Date, no event has occurred which that should have been set forth in a supplement or amendment to the Registration StatementsStatement, the General Disclosure Package Prospectus or the any Issuer Free Writing Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and forth; and
(iv) there no event contemplated in Section 7(h) or 7(i) has occurred in respect of the Partnership Entities.
(i) The Partnership Entities (taken as a whole) shall not been, subsequent to have sustained since the date of the most recent latest audited financial statements included or incorporated by reference in the General Disclosure Package, most recent preliminary prospectus any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth or contemplated in the General Disclosure PackageTime of Sale Prospectus and the Prospectus or shall have become a party to or the subject of any litigation, court or governmental action, investigation, order or decree which is materially adverse to the Partnership Entities, taken as a whole and (ii) since such date there shall not have been any material adverse change in the partners’ or members’ capital, capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or short-term or long-term debt of the Company or any of its subsidiariesPartnership Entities, taken as a whole, or any change, or any development involving a prospective material adverse change, in or affecting the general affairs, operations, business, general affairsprospects, capitalization, management, financial position, stockholderssecurityholders’ equity or results of operations of the Company or any of its subsidiariesPartnership Entities, taken as a whole, otherwise than as set forth or contemplated in the General Disclosure PackageTime of Sale Prospectus and the Prospectus, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is), is to make it, in the judgment of the RepresentativeManagers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of the Stock Notes being delivered on the Closing Date on the terms and in the manner contemplated in the General Disclosure PackageTime of Sale Prospectus and the Prospectus.
(i) Subsequent to the execution and delivery of this Agreement, if any debt securities of the Partnership are rated by any “nationally recognized statistical rating organization,” as that term is defined in Section 3(a)(62) of the Exchange Act, (i) no downgrading shall have occurred in the rating accorded such debt securities (including the Notes) and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any securities of the Partnership.
(j) If any event shall have occurred on or prior to the Closing Date that requires the Partnership to prepare an amendment or supplement to the Prospectus, such amendment or supplement shall have been prepared, the Managers shall have been given a reasonable opportunity to comment thereon as provided in Section 5(a)(iv) hereof, and copies thereof shall have been delivered to the Managers reasonably in advance of the Closing Date.
(k) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would would, as of the Closing Date, prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesNotes; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the ProspectusNotes.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company Partnership shall have furnished to the Underwriters a Secretary’s Certificate of Managers such additional documents and certificates as the Company, in form and substance reasonably satisfactory to Managers or counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative Underwriters 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 are in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Magellan Midstream Partners, L.P.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the each Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; Commission and FINRA shall have raised no unresolved objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the StockSecurities, the Registration StatementsStatement, the General Disclosure Package, each Issuer Free Writing Prospectus and the 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 to the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, Wxxxxx Xxxxxx Pxxxxxxxx Xxxx and Dxxx LLP shall have furnished to the Representative Representatives such counsel’s written opinion and negative assurance statementletter, as counsel to the Company, each addressed to the Underwriters and each dated the as of such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(e) Each of K&L Gates LLP and Nxxxxx Xxxxxxx Xxxxx & Sxxxxxxxxxx LLP shall have furnished to the Representatives such counsel’s written opinion, as intellectual property counsels to the Company, addressed to the Underwriters and each dated as of such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(f) The Representative Representatives shall have received from Xxxxxxx Procter Cxxxxx LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the as of such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fg) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young LLP LLP, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Representatives (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(gh) On the effective date of any post-effective amendment to any the Registration Statement and on the such Closing Date, the Representative Representatives shall have received a letter (the “bring-down letter”) from Ernst Exxxx & Young LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Representatives concurrently with the execution of this Agreement pursuant to paragraph (fg) of this Section 6.
(hi) The Company shall have furnished to the Representative Representatives a certificate, dated the such Closing Date, of its Chief Executive Officer and its Chief Financial Officer Officer, or an officer acting in a similar capacity, stating in their respective capacities as officers of the Company on behalf of the Company and not in their individual capacities that (i) such officers have carefully examined no stop order suspending the effectiveness of the Registration StatementStatement (including, the General Disclosure Packagefor avoidance of doubt, any Permitted Free Writing Prospectus and the Prospectus andRule 462(b) Registration Statement), in their opinion, the Registration Statements and each or any post-effective amendment thereto, at shall be in effect and no proceedings for such purpose shall have been instituted or, to their knowledge, threatened by the Applicable TimeCommission, as of (ii) for the period from and including the date of this Agreement through and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the including such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that there has not been so set forth thereinoccurred any Material Adverse Effect, (iii) to their knowledge, after reasonable investigation, as of the such Closing Date, the representations and warranties of the Company in this Agreement are true and correct 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited consolidated financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change Material Adverse Effect in the financial position or results of operations of the Company or any of its subsidiariesCompany, or any change or development that, singularly or in the aggregate, would reasonably be expected to involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a wholeMaterial Adverse Effect, except as set forth in the General Disclosure Package and the Prospectus.
(ij) Since the date of the latest most recently audited consolidated financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofPackage, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises exercises, settlements of restricted stock units, and stock repurchases in the ordinary course of businessbusiness and the issuance of Common Stock pursuant to the Novartis SPA) or long-term debt of the Company or any of its subsidiariesCompany, or any change, or any development involving a prospective change, in or affecting the business, assets, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiariesCompany, otherwise than as set forth in the General Disclosure PackagePackage or the Prospectus, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) 6(j), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock Securities on the terms and in the manner contemplated in the General Disclosure Package.
(jk) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which regulatory authority that would prevent the issuance or sale of the Stock Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kl) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in any of the Company’s securities shall have been suspended or materially limited by the Commission or the Exchange, or trading in securities generally on the NASDAQ New York Stock Exchange, Nasdaq Global Select Market, Nasdaq Global Market, Nasdaq Capital Market or the NYSE American LLC 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery of the Stock Securities on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative Representatives shall have received on and as of the such Closing Date satisfactory evidence of the good standing of the Company in the State its jurisdiction of Delaware organization and existence its good standing as a foreign corporation in such other jurisdictions as the State of WashingtonRepresentatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities governmental authorities of such jurisdictions.
(n) The Representative Representatives shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons Company’s officers, directors, and entities certain stockholders of the Company listed in Exhibit B Schedule D to this Agreement.
(o) The Company shall have furnished to the Underwriters Representatives a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel to the Underwriters and customary for the Underwriterstype of offering contemplated by this Agreement.
(p) The Company shall have furnished to the Representatives a certificate, dated such Closing Date, of its Chief Financial Officer, or an officer acting in a similar capacity, in form and substance reasonably satisfactory to the Representatives.
(q) The Representatives shall have received a form of the Warrant, in form and substance reasonably satisfactory to the Representatives.
(r) On or prior to the such Closing Date, the Company shall have furnished to the Representative Representatives such further certificates and documents as the Representative Representatives 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Voyager Therapeutics, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Warrants, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, Xxxxxx LLP shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each as counsel to the Company, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentative and set forth on Exhibit C hereto.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst Xxxxx & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration StatementStatements, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth thereinProspectus, (iii) to the best of their knowledgeknowledge after reasonable investigation, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiariesCompany, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a wholeCompany, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiariesCompany, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiariesCompany, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock and Warrants on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock and Warrants or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock and Warrants or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(k) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company’s corporate credit rating or the rating accorded the Company’s debt securities 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 (other than an announcement with positive implications of a possible upgrading), the Company’s corporate credit rating or the rating of any of the Company’s debt securities.
(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 New York Stock Exchange, the NASDAQ Global Stock Market or the NYSE MKT 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock and Warrants on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lm) The Company Exchange shall have filed a Notification: Listing approved the Stock and Warrant Shares for listing therein, subject only to official notice of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Marketissuance.
(mn) The Representative Cowen shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State its jurisdictions of Delaware organization and existence their good standing as a foreign corporation entities in the State of Washingtonsuch other jurisdictions as Cowen may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(no) The Representative Cowen shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(op) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pq) The Company shall have furnished to the Underwriters a Certificate of the Chief Financial Officer of the Company, substantially in the form of Exhibit F hereto.
(r) On or prior to the Closing Date, the Company shall have furnished to the Representative Cowen such further certificates and documents as the Representative Cowen 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Sunesis Pharmaceuticals Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the such Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, any free writing prospectus, the Prospectus or any Permitted Free Writing Time of Sale Disclosure Package, the Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, any Preliminary Prospectus, each Issuer Free Writing Prospectus free writing prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations Securities Act and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General Time of Sale Disclosure Package, any Issuer Free Writing Prospectus free writing prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration StatementsStatement, the General Time of Sale Disclosure Package, each Issuer Free Writing Prospectus free writing prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West On the Closing Date, the Representative shall have received the opinion letter and negative assurance letter of Xxxxxx LLP, counsel for the Company, shall have furnished to dated as of such date, the Representative such counsel’s written opinion forms of which are attached as Exhibit II-1 and negative assurance statementExhibit II-2, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representativerespectively.
(e) The On the Closing Date, the Representative shall have received from the opinion of the General Counsel of the Company, dated as of such date, the form of which is attached as Exhibit III.
(f) On the Closing Date the Representative shall have received the opinion and negative assurance letter of Xxxxxxx Procter LLP, counsel for the Underwriters in connection with the offer and sale of the Stock, in form and substance satisfactory to the Underwriters, dated as of such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such mattersdate.
(fg) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules rules and Regulations and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, 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 StatementsStatement, the General Time of Sale Disclosure Package and the Prospectus.
(gh) On the effective date of any post-effective amendment to any the Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Time of Sale Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(hi) The Company shall have furnished to the Representative a certificate, dated the such Closing Date, of its Chief Executive Officer Chairman of the Board or President and its Chief Financial Officer stating on behalf of the Company, that (i) such officers have carefully examined no stop order suspending the effectiveness of the Registration StatementStatement (including, the General Disclosure Packagefor avoidance of doubt, any Permitted Free Writing Prospectus and the Prospectus andRule 462(b) Registration Statement), in their opinion, the Registration Statements and each or any post-effective amendment thereto, at shall be in effect and no proceedings for such purpose shall have been instituted or, to their knowledge, threatened by the Applicable TimeCommission, as of (ii) for the period from and including the date of this Agreement through and as of the Closing Date 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 not misleadingincluding such date, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that there has not been so set forth thereinoccurred any Material Adverse Change, (iii) to their knowledgethe representations, as of the Closing Date, the representations warranties and warranties covenants of the Company set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date, and (iv) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectussuch date.
(ij) Since the date of the latest audited financial statements included in the General Time of Sale Disclosure Package or incorporated by reference in the General Time of Sale Disclosure Package as of the date hereof, (i) neither the Company and nor any of its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Time of Sale Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of and its subsidiaries, otherwise than as set forth in the General Time of Sale Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) j), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Time of Sale Disclosure Package.
(jk) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kl) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company’s corporate credit rating or the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization,” as that 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 (other than an announcement with positive implications of a possible upgrading), the Company’s corporate credit rating or the rating of any of the Company’s debt securities.
(m) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in any of the Company’s securities shall have been suspended or materially limited by the Commission or by The NASDAQ Capital Market, or trading in securities generally on the New York Stock Exchange, NASDAQ Global Select Market, NASDAQ Global Market, NASDAQ Capital Market or the NYSE Amex 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Time of Sale Disclosure Package and the Prospectus.
(ln) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Capital Market and shall have received no objection thereto from the NASDAQ Global Capital Market.
(mo) The Representative shall have received on and as of the such Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of incorporation and its good standing as foreign entities in such other jurisdictions as the State of Delaware and existence as a foreign corporation in the State of WashingtonRepresentative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities authorities of such jurisdictions.
(np) The Representative shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons executive officers and entities directors of the Company listed in Exhibit B Schedule D to this Agreement.
(oq) The Company shall have furnished to the Underwriters Representative a certificate, dated such Closing Date, of its Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pr) The Company shall have furnished to the Representative a certificate, dated such Closing Date, of its Chief Business Officer, substantially in the form of Exhibit IV hereto.
(s) On or prior to the such Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably requestrequest and are customary for the type of offering contemplated by this Agreement. 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of Independent Underwriter to purchase and pay for the sale of the Stock, Notes under this Agreement are subject to the accuracy, when made and as satisfaction of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements shall have become effective under the Securities Actbecome, and shall remain, effective on the date of this Agreement and through the Closing Date; the Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 4(a)(iv) hereof; and, at or prior to the Closing Date, no stop order suspending the effectiveness of any of, or preventing the use of, either Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectuspost-effective amendment thereto, any Preliminary Prospectus, the Prospectus or any Permitted Issuer Free Writing Prospectus or any part thereof the Prospectus shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A under 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.
(b) All the representations and warranties of the Company contained in this Agreement shall be true and correct on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(c) At or after the Applicable Time, there shall not have been 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 all requests for additional information on no implication of a possible downgrading of such rating).
(d) (i) Since the part date of the Commission (to be latest balance sheet included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) Prospectus, there shall not have been complied with to any material adverse change, or any development involving a prospective material adverse change, in the reasonable satisfaction business prospects, financial condition or results of operations of the Representative; Company and its subsidiaries taken as a whole, whether or not arising in the Rule ordinary course of business, except as otherwise described in the 462(b) Registration Statement, if anythe Pricing Disclosure Package or the Prospectus, each Issuer Free Writing Prospectus (ii) as of the Closing 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 Pricing Disclosure Package and the Prospectus Prospectus, there shall not have been filed withany material adverse change, or any development involving a prospective material adverse change, in the Commission within capital stock or in the applicable time period prescribed for such filing by, and long-term debt of the Company from that set forth in compliance with, the Rules and Regulations and in accordance with Section 4(a), Pricing Disclosure Package and the Rule Prospectus, except as otherwise described in the 462(b) Registration StatementStatement or the Pricing Disclosure Package and the Prospectus, if any, (iv) the Company and its subsidiaries shall have become effective immediately upon no liability or obligation, direct or contingent, which is material to the Company and its filing with subsidiaries, taken as a whole, other than those in the Commission; 462(b) Registration Statement or the Pricing Disclosure Package and FINRA the Prospectus, and (v) on the Closing Date you shall have raised no objection to received a certificate dated the fairness and reasonableness Closing Date, signed by C. Xxxxxxx Xxxxx, in his capacity as Chairman of the terms Board and Chief Executive Officer, and by Xxxx X. Xxxxx, Xx., in his capacity as Executive Vice President and Chief Financial Officer of the Company, confirming the matters set forth in paragraphs (a), (b), (c) and (d) of this Agreement or the transactions contemplated herebySection 6.
(be) None of the Underwriters shall have discovered and disclosed to the Company on or prior to At the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in you shall have received the written opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick Xxxxxxxx & West Worcester LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, addressed to the Underwriters in the form attached hereto as Annex I and in form and substance reasonably satisfactory to the RepresentativeUnderwriters and Underwriters’ Counsel.
(ef) The Representative At the Closing Date you shall have received from the written opinion of Xxxxx Xxxxxx, Esq., General Counsel for the Company, dated the Closing Date, addressed to the Underwriters in the form attached hereto as Annex II and in form and substance reasonably satisfactory to the Underwriters and Underwriters’ Counsel.
(g) At the Closing Date you shall have received the written opinion of Gesmer Xxxxxxxxx LLP, special Connecticut counsel to Wachovia Bank, National Association, the Owner Trustee of Iron Mountain Statutory Trust – 1998 and Iron Mountain Statutory Trust – 1999 (together, 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, addressed to the Underwriters in the form attached hereto as Annex III and in form and substance reasonably satisfactory to the Underwriters and Underwriters’ Counsel.
(h) The Underwriters shall have received on the Closing Date the written opinion of Xxxxxx & Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect as to such matters as the Underwriters may shall reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such mattersrequest.
(fi) At the time of the execution of this Agreement, the Representative The Underwriters shall have received from Ernst & Young LLP a letter or letters on and as of the date of this Agreement (each, an “initial letter, addressed to the Underwriters, executed and dated such date”), in form and substance satisfactory to the Representative you, from each of Deloitte & Touche LLP (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act Iron Mountain Incorporated) and the Rules and Regulations and PCAOB and RSM Xxxxxx Xxxxxx (ii) stating the conclusions and findings of such firmwith respect to Iron Mountain Europe Limited), of the type ordinarily included in each independent public accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference referred to in the Registration Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement Prospectus and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time letters on and as of the Closing Date, any Permitted Free Writing Prospectus in form and substance satisfactory to you, from each of Deloitte & Touche LLP and RSM Xxxxxx Xxxxxx confirming the information contained in the initial letter or letters provided by such accountants.
(j) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, which information is given in the light 462(b) Registration Statement (exclusive of any amendment thereof after the circumstances in which they were madedate hereof) and the Pricing Disclosure Package (exclusive of any supplement thereto after the date hereof) and the Prospectus, there shall not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position capital stock or results of operations long-term debt of the Company or any of its subsidiariessubsidiaries or any change, or any change or development that, singularly or in the aggregate, would involve a material adverse change or involving a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets properties or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) above, is, in the judgment of the RepresentativeUnderwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of the Stock Notes on the terms and in the manner contemplated in the General Disclosure Package.
Prospectus (j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order exclusive of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariessupplement).
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares complied with the NASDAQ Global Market and shall have received no objection thereto from provisions of Section 4(d) hereof with respect to the NASDAQ Global Market.
(m) The Representative shall have received furnishing of Prospectuses on and as the next business day succeeding the date of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pl) On or prior to the Closing Date, Euroclear and Clearstream and, if applicable, The Depository Trust Company, shall have accepted the Notes for clearance.
(m) The Company shall have furnished to the Representative Underwriters and Underwriters’ Counsel with such further certificates and other certificates, opinions or other documents as they may have reasonably requested. If any of the Representative may reasonably request. All 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, letters, evidence and certificates mentioned above written statements or elsewhere in letters furnished to you or to Underwriters’ Counsel pursuant to this Agreement Section 6 shall be deemed to not be in compliance with the provisions hereof only if they are all material respects reasonably satisfactory in form and substance reasonably satisfactory to counsel for you and to Underwriters’ Counsel, all obligations of the UnderwritersUnderwriters and the Independent Underwriter hereunder may be cancelled by you at, or at any time prior to, the 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 respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the such Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the StockSecurities, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, TroyGould PC shall have furnished to the Representative such counsel’s written opinion opinions and negative assurance statement, each as counsel to the Company, addressed to the Underwriters and dated the such Closing Date, in form and substance reasonably satisfactory to the Representative, as set forth in Exhibit O to this Agreement.
(e) The Representative shall have received from Xxxxxxx Procter LLPDLA Piper LLP (US), counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young Xxxxxx LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the such Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young Xxxxxx LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the such Closing Date, of its Chief Executive Officer Chairman of the Board or President and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at as of their respective effective dates, the Applicable Timedate of first use of the Prospectus, as of the date of this Agreement and as of the such Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth thereinProspectus, (iii) to the best of their knowledgeknowledge after reasonable investigation, as of the such Closing Date, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of and its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofPackage, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiariesCompany, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiariesCompany, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) ), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock and the Warrants on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(k) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company’s corporate credit rating or the rating accorded the Company’s debt securities 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 (other than an announcement with positive implications of a possible upgrading), the Company’s corporate credit rating or the rating of any of the Company’s debt securities.
(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 NASDAQ New York Stock Exchange, Nasdaq Global Market 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock and the Warrants on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lm) The Company shall Stock and the Warrant Shares have filed a Notification: Listing been quoted for trading on the OTCBB, subject only to official notice of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Marketissuance.
(mn) The Representative shall have received on and as of the such Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing as foreign entities in such other jurisdictions as the State of Delaware and existence as a foreign corporation in the State of WashingtonRepresentative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(no) The Representative shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons officers, directors, stockholders, option holders and entities warrant holders of the Company listed in Exhibit B Schedule D to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative Xxxxx such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (ImmunoCellular Therapeutics, Ltd.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the each Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and ; the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; , and FINRA shall have raised no unresolved objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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[Reserved.]
(d) Fenwick Xxxxxx & West LLP, counsel for the Company, Xxxxxxx LLP shall have furnished to the Representative such counsel’s written opinion and negative assurance statementletter, each as counsel to the Company, addressed to the Underwriters and each dated the as of such Closing Date, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit III hereto.
(e) Xxxxx Bigel LLP shall have furnished to the Representative such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Underwriters and each dated such Closing Date, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit IV hereto.
(f) Smith, Anderson, Xxxxxx, Dorsett, Mitchell, & Xxxxxxxx, L.L.P. shall have furnished to the Representative such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and each dated such Closing Date, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit V hereto.
(g) The Representative shall have received from Xxxxxxx Procter Xxxxxx LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the as of such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fh) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP PricewaterhouseCoopers LLP, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(gi) On the effective date of any post-effective amendment to any the Registration Statement and on the such Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young PricewaterhouseCoopers LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (fg) of this Section 6.
(hj) The Company shall have furnished to the Representative a certificate, dated the such Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating in their respective capacities as officers of the Company on behalf of the Company and not in their individual capacities that (i) such officers have carefully examined no stop order suspending the effectiveness of the Registration StatementStatement (including, the General Disclosure Packagefor avoidance of doubt, any Permitted Free Writing Prospectus and the Prospectus andRule 462(b) Registration Statement), in their opinion, the Registration Statements and each or any post-effective amendment thereto, at shall be in effect and no proceedings for such purpose shall have been instituted or, to their knowledge, threatened by the Applicable TimeCommission, as of (ii) for the period from and including the date of this Agreement through and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the including such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that there has not been so set forth thereinoccurred any Material Adverse Effect, (iii) to their knowledge, after reasonable investigation, as of the such Closing Date, 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 the such Closing Date, Date and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change Material Adverse Effect in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would reasonably be expected to involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a wholeMaterial Adverse Effect, except as set forth in the General Disclosure Package and the Prospectus.
(ik) Since the date of the latest most recently audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofPackage, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiariesCompany, or any change, or any development involving a prospective change, in or affecting the business, properties, assets, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of and its subsidiaries, taken as a whole, otherwise than as set forth in the General Disclosure PackagePackage or the Prospectus, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) Section 6(j), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jl) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which regulatory authority that would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(km) Subsequent to the execution and delivery of this Agreement Agreement, there shall not have occurred any of the following: (i) trading in any of the Company’s securities shall have been suspended, or materially limited by the Commission or the Exchange, or trading in securities generally on the New York Stock Exchange, NASDAQ Global Select Market, NASDAQ Global Market, NASDAQ Capital Market or the NYSE MKT LLC, or trading in any securities of the Company on any exchange or in the over-the-counter marketexchange, shall have been suspended or materially limitedsuspended, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal federal or state authorities authorities, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, hostilities or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(ln) The Company Exchange shall have filed a Notification: Listing approved the Stock for listing therein, subject only to official notice of Additional Shares with the NASDAQ Global Market issuance and shall have received no objection thereto from the NASDAQ Global Marketevidence of satisfactory distribution.
(mo) The Representative shall have received on and as of the such Closing Date satisfactory evidence of the good standing of the Company in the State its jurisdiction of Delaware organization and existence its good standing as a foreign corporation in such other jurisdictions as the State of WashingtonRepresentative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities governmental authorities of such jurisdictions.
(np) The Representative shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons officers, directors, and entities listed in Exhibit B to this Agreementsubstantially all stockholders and optionholders of the Company.
(oq) The Company shall have furnished to the Underwriters Representative a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel to the Underwriters and customary for the Underwriterstype of offering contemplated by this Agreement.
(pr) On or prior to the such Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Novan, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time of Sale and on the each Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeUnderwriters; and the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a2(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the The Underwriters shall not have discovered and disclosed to the Company on or prior to the each Closing Date that any the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General Disclosure Package, any Issuer Free Writing Prospectus or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings action incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration StatementsStatement, the General Disclosure Package, each Issuer Free Writing Prospectus and the Final 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 Company documents and information that they it may reasonably request to enable them it to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP shall have furnished to the Representative such counsel’s written opinion and negative assurance statementopinion, each as counsel to the Company, addressed to the Underwriters Representative and dated the each Closing Date, in a form and substance reasonably satisfactory acceptable to the Representative.
(e) Each of Millen, White, Xxxxxx & Xxxxxxxx, P.C. and Xxxxxx Patent Law Group shall have furnished to the Representative such counsel’s written opinion, as special intellectual property counsel to the Company, addressed to the Representative and dated each Closing Date, in a form reasonably acceptable to the Representative.
(f) The Representative shall have received from Xxxxxxx Procter LLPLeClairRyan, A Professional Corporation, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the each Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request it requests for enabling them it to pass upon such matters.
(fg) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP PricewaterhouseCoopers LLP, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (iA) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, 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 StatementsStatement, the General Disclosure Package and the Final Prospectus.
(gh) On the effective date of any post-effective amendment to any the Registration Statement and on the each Closing Date, the Representative Underwriters shall have received a letter (the “bring-down letter”) from Ernst & Young LLP PricewaterhouseCoopers LLP, addressed to the Underwriters and dated the each Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Final Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Underwriters concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 66(h).
(hi) The Company shall have furnished to the Representative a certificate, dated the each Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleadingFinal Prospectus, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to best of their knowledgeknowledge after reasonable investigation, as of the each Closing Date, 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 the each Closing Date, and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiariesCompany, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Final Prospectus.
(ij) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases a change in number of Common Stock shares outstanding due to the ordinary course issuance of businessshares upon exercise of options or warrants) or long-term debt of the Company or any of its subsidiariesCompany, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiariesCompany, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) Section 6(j), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jk) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kl) 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, NYSE MKT, NASDAQ Global Market or NASDAQ Capital Market or in the over-the-counter market, or trading in any securities the Common Stock of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or been the subject of an act of terrorism, terrorism or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Final Prospectus.
(lm) The Company Exchange shall have filed a Notification: Listing approved the Stock for listing therein, subject only to official notice of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Marketissuance.
(mn) The Representative shall have received on and as of the each Closing Date satisfactory evidence of the good standing of the Company in the State its jurisdiction of Delaware incorporation and existence its good standing as a foreign corporation in such other jurisdictions as the State of WashingtonRepresentative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities governmental authorities of such jurisdictions.
(no) The Representative shall have received the written agreementsLock-Up Agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B Schedule III to this Agreement.
(op) The Company Representative shall have furnished to received on the Underwriters Closing Date a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pq) On or prior to the each Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Curis Inc)
Conditions of Underwriters’ Obligations. The respective several obligations of the several Underwriters hereunder, and to purchase the closing of Firm Shares on the sale of the Stock, Closing Date are subject to the accuracy, when made and as satisfaction of each of the Applicable Time and on the Closing Date, following conditions:
(a) All of the representations and warranties of the Company contained hereinin this Agreement shall be true and correct on the Closing Date, to with the accuracy same force and effect as if made on and as of the statements Closing Date. The Company shall have performed or complied in all material respects with all of the Company made in any certificates pursuant agreements herein contained and required to the provisions hereof, to the performance be performed or complied with by the Company of its obligations hereunder, and on or prior to each of the following additional terms and conditions:Closing Date.
(ai) The Registration Statements Statement shall have become effective (or if (i) a post-effective amendment thereto (including any such amendment required to be filed pursuant to Rule 430A under the Securities Act) or (ii) a new or additional registration statement pursuant to Rule 462 under the Act has been filed, such post-effective amendment or new or additional registration statement (as applicable) shall have become effective) not later than the opening of business on the first full business day next following the date of this Agreement or at such later date and time as the Representatives may approve in writing, (ii) at the Closing Date, no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, threatened commenced or shall be pending before or contemplated by the Commission, Commission and all requests every comment by or request for additional information on the part of the Commission (to be included or incorporated by reference in any securities commission or regulatory authority of the Registration Statements several states or the Prospectus or otherwise) any foreign jurisdiction shall have been responded to or complied with to in all material respects and (iii) no stop order suspending the reasonable satisfaction sale of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus Shares shall have been filed with, the Commission within the applicable time period prescribed issued and no proceeding for such filing by, that purpose shall have been commenced and in compliance with, the Rules and Regulations and in accordance with Section 4(a)be pending before any securities regulators, and the Rule 462(b) Registration Statement, if any, Company shall not have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness received notice of the terms contemplation of any such issuance by any such securities regulator, in each case set forth in this Agreement or clause (iii) that, in the transactions contemplated herebyRepresentatives' opinion, would materially adversely affect the offering of the Shares.
(bc) None Subsequent to the effective date of this Agreement, except as set forth in or contemplated by the Registration Statement and the Prospectus, (i) there shall not have been any Material Adverse Change, or any development involving a prospective Material Adverse Change, whether or not arising in the ordinary course of business of the Company, (ii) there shall not have been any change, or any development involving a prospective material adverse change, in the capital stock or in the long-term debt of the Company or any of its Subsidiaries (other than as a result of borrowings (revolving or other) for working capital incurred in the ordinary course of business) and (iii) neither the Company nor any of its Subsidiaries shall have incurred any liability or obligation, direct or contingent, which is material to the Company and its Subsidiaries, taken as a whole and which has materially changed the financial position of the Company and its Subsidiaries, taken as a whole.
(d) On the Closing Date, the Underwriters shall have discovered received a certificate dated the Closing Date, signed by Xx. Xxxxxx X. Xxxxxxxx and disclosed Xx. Xxxxxx X. Jepsen, in their capacities as (A) the President and Chief Executive Officer and (B) Executive Vice President and Chief Financial Officer of the Company, respectively, confirming the matters set forth in paragraphs (a), (b), and (c)(i) of this Section 9 and that the Company has complied with all of the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied by the Company on or prior to the Closing Date.
(e) All the representations and warranties of each Selling Stockholder contained in this Agreement shall be true and correct on the Closing Date with the same force and effect as if made on and as of the Closing Date, and the Underwriters shall have received on the Closing Date a certificate dated the Closing Date from each Selling Stockholder to such effect and to the effect that any Registration Statement or any amendment or supplement thereto contains an untrue statement such Selling Stockholder has complied with all of a fact which, in the opinion agreements and satisfied all of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material conditions herein contained and is required to be stated therein complied with or is necessary satisfied by such Selling Stockholder on or prior to make the statements therein not misleading, or that the General 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 opinion of such counsel, is material or omits to state any fact which, in the 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 misleadingClosing Date.
(cf) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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 The Underwriters shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for received on the Company, shall have furnished to the Representative such counsel’s written Closing Date an opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Dateletter (each, in form and substance reasonably satisfactory to the RepresentativeRepresentatives), dated the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special counsel for the Company and the Selling Stockholders. The opinion and negative assurance letter of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP shall be rendered to the Underwriters at the request of the Company and the Selling Stockholders and so state therein.
(eg) The Representative Underwriters shall have received from on the Closing Date an opinion (in form and substance reasonably satisfactory to the Representatives), dated the Closing Date, of Xxxxxx X. Xxxxxxx, counsel for the Company, with respect to the Company and its Subsidiaries. The opinion of Xxxxxx X. Xxxxxxx Procter shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(h) The Underwriters shall have received on the Closing Date one or more opinions, dated the Closing Date, of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such counsel’s written opinion in form and negative assurance statement, dated substance reasonably satisfactory to the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such mattersRepresentatives.
(fi) At the time of The Underwriters shall have received a letter concurrently with the execution of this Agreement, Agreement and on and as of the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, Closing Date in form and substance reasonably satisfactory to the Representative (i) confirming that they are an Representatives, from Deloitte & Touche LLP, independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in public accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statements, the General Disclosure Package Statement and the ProspectusProspectus and/or incorporated therein by reference.
(gj) On The Company shall have delivered to the effective date Underwriters the agreements specified in Section 2 hereof, which agreements shall be in full force and effect on the Closing Date.
(k) The Shares shall have been duly listed, subject to notice of any post-effective amendment to any Registration Statement and issuance, on the NYSE.
(l) The Representatives shall have received on the Closing Date, a certificate of each Selling Stockholder who is not a U.S. Person (as defined under the Representative Internal Revenue Code of 1986, as amended (the "Code") to the effect that such Selling Stockholder is not a U.S. Person, which certificate may be in the form of a properly completed and executed Internal Revenue Service ("IRS") Form W-8 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(m) The Representatives shall have received from each Selling Stockholder who is a letter U.S. Person (as defined under the “bring-down letter”Code) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated on the Closing Date, of its Chief Executive Officer a properly completed and its Chief Financial Officer stating that executed IRS Form W-9 (ior other applicable form or statement specified by IRS regulations in lieu thereof).
(n) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date did not include any untrue statement of a material fact and did not omit Subsequent to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statementthis Agreement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change decrease in the capital stock rating of the Company's existing bank credit facility by any "nationally recognized statistical rating organization" (other than stock option and warrant exercises and stock repurchases in as defined for purposes of Rule 436(g) under the ordinary course of businessAct) or long-term debt any notice given of the Company any intended or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, potential decrease in any such case described rating or of a possible change in clause (i) or (ii) of this paragraph (i) is, in any such rating that does not indicate the judgment direction of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Packagepossible change.
(jo) No action Xxxxxx & Xxxxxxx LLP shall have been taken and no law, statute, rule, regulation furnished with such documents as they may reasonably require for the purpose of enabling them to review or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent pass upon the issuance or sale matters referred to in this Section 9. The several obligations of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or Underwriters to purchase any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) Subsequent Additional Shares hereunder are subject to the execution and delivery of this Agreement there shall not have occurred any of to the following: (i) trading in securities generally Underwriters on the NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the applicable Option Closing Date satisfactory evidence of such opinions, certificates, letters and other documents as the Representatives may reasonably request with respect to the good standing of the Company in Company, the State of Delaware due authorization and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities issuance of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons Additional Shares and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished other matters related to the Underwriters a Secretary’s Certificate issuance of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably requestAdditional Shares. All opinions, letterscertificates, evidence letters and certificates mentioned above or elsewhere in other documents required by this Agreement shall Section 9 to be deemed to delivered by the Company will be in compliance with the provisions hereof if and only if they are reasonably satisfactory in form and substance reasonably satisfactory to counsel for the Underwriters. The Company will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and other documents as the Underwriters or their counsel shall reasonably request.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective several obligations of the several Underwriters hereunder, to purchase the Firm Shares and the closing of Additional Shares, as the sale of the Stockcase may be, on any Closing Date are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties contained herein on the part of the Company contained hereinand the Selling Shareholders on the date hereof, and at and as of any Closing Date, to the performance by the Company and each of the Selling Shareholders of its obligations hereunder, to the accuracy of the statements of the Company and the Selling Shareholders made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereof and to each of the following additional terms and conditionsconditions precedent:
(a) The Final Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5 thereof; if the Company elected to rely upon Rule 462, the Rule 462 Registration Statements Statement shall have become effective under by 10 a.m., New York City time, on the Securities Act, and date of this Agreement; no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, ; and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of The Offered Shares and the Underwriters ADSs shall have discovered been admitted for listing on the New York Stock Exchange and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein admission shall not misleading, or that the General 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 opinion of such counsel, is material or omits to state any fact which, in the 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 misleadinghave been revoked.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of Since 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 General Disclosure Package and the Final Prospectus, as the case may be, as of a date not more than three (3) business days and prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers there shall not have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiarieschange, or any change or development that, singularly or in the aggregate, would involve a material adverse change or involving a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operationscondition, business, assets or prospects of the Company and its subsidiaries taken as a wholeproperties, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, senior management, financial position, stockholdersshareholders’ equity or results of operations of the Company or any and each of its subsidiariessubsidiaries taken as a whole.
(d) On such Closing Date, otherwise than as set forth the Company shall have delivered to you on behalf of the Underwriters a certificate of the Company, signed by each of the principal executive officer and the principal financial or accounting officer of the Company, dated such Closing Date, substantially in the General Disclosure Packageform of Annex A.
(e) On such Closing Date, the effect Company shall have delivered to you on behalf of whichthe Underwriters a certificate of the General Counsel, signed by him, dated such Closing Date, substantially in the form of Annex B.
(f) On such Closing Date, each Selling Shareholder shall have delivered to you on behalf of the Underwriters a certificate of the Selling Shareholder, signed by such Selling Shareholder, dated such Closing Date, substantially in the form of Annex C.
(g) Upon the signing of this Agreement and on such Closing Date, the Company shall have caused to be delivered to you on behalf of the Underwriters a letter, dated the date of such signing in the case of the first letter and dated such Closing Date in the case of any subsequent letter, from Ernst & Young, substantially in the form of Annex D.
(h) On such case described in clause Closing Date, you shall have received opinions and/or letters, addressed to you, dated such Closing Date, of:
(i) or Liniya Prava, Russian legal advisers to the Company and the Selling Shareholders, substantially in the forms of Exhibit A and Exhibit B;
(ii) The General Counsel of this paragraph the Company, substantially in Exhibit C;
(iii) Xxxxxx & Xxxxxxx, U.S. legal advisers to the Company and the Selling Shareholders, substantially in the forms of Exhibit D, Exhibit E and Exhibit F;
(iv) VISCHER , Swiss legal advisers to the Underwriters in respect of Mechel Trading A.G., substantially in the form of Exhibit G;
(v) Voicu & Filipescu SCA, Romanian legal advisers to the Company, substantially in the form of Exhibit H;
(vi) LeBoeuf, Lamb, Xxxxxx & XxxXxx, LLP, legal advisers to the Depositary, substantially in the form of Exhibit I;
(vii) Cleary, Gottlieb, Xxxxx & Xxxxxxxx, U.S. and Russian legal advisers to the Underwriters, in form and substance satisfactory to you; and
(viii) Xxxxxx & Xxxxxx, British Virgin Islands legal advisers to Britta Investments Limited, one of the Selling Shareholders, substantially in the form of Exhibit J.
(i) isOn the relevant Closing Date, the Deposit Agreement shall be in the judgment of the Representative, so material full force and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Packageeffect.
(j) No action On such Closing Date, the Depositary shall have been taken and no law, statute, rule, regulation furnished or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale caused to be furnished to you on behalf of the Stock or materially and adversely affect or potentially materially and adversely affect Underwriters certificates satisfactory to you evidencing the business or operations deposit with it of the Offered Shares being so deposited against issuance of ADRs evidencing the ADSs to be delivered on behalf of the Company or any and the Selling Shareholders at such Closing Date, and the execution, countersignature (if applicable), issuance and delivery of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent ADRs evidencing such ADSs pursuant to the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesDeposit Agreement.
(k) Subsequent to The Company shall have obtained approval by the execution and delivery of this Agreement there shall not have occurred any FSFM of the following: (i) trading in securities generally on the NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package Russian Decision and the ProspectusADS Permission.
(l) The Company shall have filed (i) opened the accounts contemplated by the Moscow Escrow Agreements; (ii) maintained such accounts; (iii) delivered a Notification: Listing of Additional Shares with written instruction to the NASDAQ Global Market and shall have received no objection thereto Moscow Escrow Agent to transfer the proceeds from the NASDAQ Global Marketsale of the Company Firm Shares immediately on receipt to the Term Deposit Account any funds deposited into the Company Xxxxx Account; and (iv) taken no action to close the accounts contemplated by the Moscow Escrow Agreements, to amend the terms of the Moscow Escrow Agreements, otherwise to countermand in any way the instructions contemplated by this Section 8(k), or otherwise to dispose of the proceeds from the sale of the Offered Shares in any way differing from the description of such disposition in the Final Prospectus under the sections entitled “Prospectus Summary—The Offering—Escrow of proceeds and registration of placement report” and “Escrow of Proceeds and Registration of Placement Report.”
(m) The Representative Each Selling Shareholder shall have received on and as (i) procured that the External Escrow Account be opened; (ii) procured that the External Escrow Account be maintained; (iii) agreed with you that you, at the relevant Closing Date, would transfer the proceeds from the sale of the Closing Date satisfactory evidence Offered Shares or ADSs to be sold by him or it to the External Escrow Account; and (iv) taken no action to close the External Escrow Account, to amend the terms of the good standing External Escrow Agreement, otherwise to countermand in any way the instructions contemplated by this Section 8(l), or otherwise to dispose of the Company proceeds from the sale of the ADSs representing Offered Shares in any way differing from the description of such disposition in the State Final Prospectus under the sections entitled “Prospectus Summary—The Offering—Escrow of Delaware proceeds and existence as a foreign corporation in the State registration of Washington, in each case in writing or any standard form placement report” and “Escrow of telecommunication from the appropriate Governmental Authorities Proceeds and Registration of such jurisdictionsPlacement Report.”
(n) The Representative No Final Prospectus or amendment or supplement to the Registration Statement or the Final Prospectus shall have received been filed to which you object in writing and such written notice contains your objections in reasonable detail; provided that prior to such written notice, you have adequately consulted with the written agreements, substantially Company and each Selling Shareholders in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B reasonable details as to this Agreementyour objections.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the such Closing Date, the Company and each Selling Shareholder shall have furnished to you on behalf of the Representative Underwriters such further information, certificates and documents as the Representative you may reasonably request. All Each of the conditions specified in this Section 8 shall be fulfilled as provided in this Agreement as of any Closing Date, and each of the opinions, letters, evidence letters and certificates mentioned above or elsewhere in to be provided pursuant to this Agreement shall be deemed to be in compliance with the provisions hereof only if they are all material respects satisfactory in form and substance reasonably satisfactory to you and counsel for the UnderwritersUnderwriters on any Closing Date.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the such Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick Xxxxxxxxx & West LLP, counsel for the Company, Xxxxxxx LLP shall have furnished to the Representative Representatives such counsel’s written opinion and negative assurance statementopinion, each as counsel to the Company, addressed to the Underwriters and dated the such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives and substantially as set forth on Exhibit II hereto.
(e) Xxxxxx X. Xxxxxx, Vice President, Patent & General Counsel of the Company, shall have furnished to the Representatives such counsel’s written opinion, as intellectual property and General Counsel to the Company, addressed to the Underwriters and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives and substantially as set forth on Exhibit III hereto.
(f) Xxxx Xxxxxx, Associate General Counsel of the Company, shall have furnished to the Representatives such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives and substantially as set forth on Exhibit IV hereto
(g) The Representative Company shall have furnished to the Representatives a certificate, dated such Closing Date, of its Chairman and Chief Executive Officer and its Senior Director, Regulatory Affairs in form and substance reasonably satisfactory to the Representatives and substantially as set forth on Exhibit V hereto.
(h) The Representatives shall have received from Xxxxxxx Procter LLPMintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fi) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Representatives (i) confirming that they are an independent registered accounting firm with respect to the Company and its Subsidiaries within the meaning of the Securities Act and the Rules and Regulations and rules and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(gj) On the effective date of any post-effective amendment to any Registration Statement and on the such Closing Date, the Representative Representatives shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Representatives concurrently with the execution of this Agreement pursuant to paragraph (fi) of this Section 6.
(hk) The Company shall have furnished to the Representative Representatives a certificate, dated the such Closing Date, of its Chairman of the Board and Chief Executive Officer and its Chief Financial Officer Vice President, Patent & General Counsel stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the such Closing Date 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 therein, in light of the circumstances under which they were made, not misleading, and the General Disclosure Package, as of the Applicable Time and as of the such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to the best of their knowledgeknowledge after reasonable investigation, as of the such Closing Date, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of and its subsidiariesSubsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries Subsidiaries taken as a whole, except as set forth in the Prospectus; it being understood that the certifications provided by the Vice President, Patent & General Counsel pursuant to this Section 6(k) will exclude the financial statements and the notes thereto, the financial schedules and other financial data and information included or incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus.
(il) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company and nor any of its subsidiaries Subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or long-term debt of the Company or any of its Subsidiaries (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt business and repayments of the Company or any of its subsidiariesexisting indebtedness), or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholdersshareholders’ equity or results of operations of the Company or any of and its subsidiariesSubsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) l), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jm) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially could be reasonably expected to materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially could reasonably be expected to materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kn) 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 NASDAQ New York Stock Exchange, Nasdaq Global Market 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such), in the case of clauses (i), (ii), (iii) and (iv) above, so as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lo) The Company Exchange shall have filed a Notification: Listing approved the Stock for listing therein, subject only to official notice of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Marketissuance.
(mp) The Representative Representatives shall have received on and as of the 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 State of Delaware and existence as a foreign corporation in the State of WashingtonRepresentatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities governmental authorities of such jurisdictions.
(nq) The Representative Representatives shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons officers and entities directors of the Company listed in Exhibit B Schedule D to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pr) On or prior to the such Closing Date, the Company shall have furnished to the Representative Representatives such further certificates and documents as the Representative Representatives 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Omeros Corp)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, to purchase and pay for the Firm Shares and the closing of the sale of the StockOption Shares, are as provided herein, shall be subject to the accuracy, when made as of the date hereof and as of the Applicable Time and Closing Date and, with respect to the Option Shares, the Option Closing Date (as if made on the Closing Datesuch Dates), of the representations 16 -16- and warranties of the Company contained herein, to the accuracy of the statements of the Company officers made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no No stop order suspending the effectiveness of any the Registration Statement Statement, or any part thereof, order preventing or suspending the use of any Base the Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued issued; no order of the Commission directed to the adequacy or accuracy of any Incorporated Document shall be in effect; and no proceedings for that any such purpose or pursuant to Section 8A under the Securities Act shall have been initiated instituted or be pending or, to the Company’s knowledgeknowledge of the Company or the Representative, shall be contemplated or threatened by the Commission, and all requests ; any request of the Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of Reid & Xriest, counsel for the Representativeseveral Underwriters; no amendment to the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Statement or Prospectus shall have been filed withhereafter to which the Representative or Reid & Priest, counsel for the several Underwriters, shall have reasonably and promptly objected in writing after having received reasonable notice and a copy thereof; there shall be in full force and effect on the date of this Agreement appropriate orders of The Public Service Commission within of Delaware and the applicable time period prescribed for such filing by, State Corporation Commission of Virginia permitting the issuance and in compliance with, sale of the Rules Shares and Regulations and the transactions relating thereto substantially in accordance with Section 4(a)the terms and conditions set forth herein; such orders shall contain no condition inconsistent with the provisions hereof or unacceptable to the Representative and shall be issued under circumstances that in the Representative's reasonable judgment are appropriate for the protection of the Underwriters; and on or prior to the Closing Date, and and, with respect to the Rule 462(b) Registration StatementOption Shares, if anythe Option Closing Date, neither of said orders shall have become effective immediately upon its filing with been rescinded, modified or stayed, or the Commission; and FINRA shall have raised no objection right of the Company to operate thereunder restrained, or be subject to any litigation or proceeding pending, or to the fairness and reasonableness knowledge of the terms of this Agreement Representative or the transactions contemplated herebyCompany, threatened.
(b) None in the earnings, business, net worth or results of operations of the Underwriters Company and the Subsidiaries taken as a whole, all or any of which, in the Representative's reasonable judgment, materially impairs the investment quality of the Shares; and no Underwriter shall have discovered and disclosed in writing to the Company on or prior to the Closing Date or, with respect to the Option Shares, the Option Closing Date, that any the Registration Statement or any amendment or supplement thereto contains Prospectus contained an untrue statement of a fact which, in the opinion of Reid & Xriest, counsel for the Underwriters, is material material, or omits to state any a fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to The authorization and issuance of the authorization, form and validity of each of this Agreement, the StockShares, the Registration StatementsStatement, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and the transactions contemplated hereby all corporate proceedings and other legal matters incident thereto shall be reasonably satisfactory in all material respects to counsel for the UnderwritersReid & Xriest, and the Company shall have furnished to Reid & Xriest such counsel all documents and information that as they may reasonably request to enable them to pass upon such mattersbe satisfied with respect to the matters referred to in this subparagraph and to furnish to the Representative an opinion, dated as of the Closing Date, or, with respect to the Option Shares, the Option Closing Date, as required by subparagraph (e) of this Section 5.
(d) Fenwick On the Closing Date, and, with respect to the Option Shares, on the Option Closing Date, the Representative shall have received the favorable opinion of Dale X. Xxxxxxxx, Xxneral Counsel for the Company, dated as of such date, satisfactory in form, scope and substance to the Representative and to counsel for the Underwriters to the effect that:
(i) the Company has been duly organized and is validly existing as a corporation in good standing under the laws of Delaware and Virginia, with all corporate power and other authority necessary to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares; and each of the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction and is duly qualified to do business as a foreign corporation and is in good standing under the laws of any jurisdiction in which the conduct of its business or the ownership or leasing of its properties requires such qualification, with all corporate and other authority and franchises necessary to own or lease its 18 -18- properties and conduct its business as described in the Registration Statement and Prospectus.
(ii) the Company is duly qualified as a foreign corporation in good standing in Maryland, New Jersey, Ohio and Pennsylvania, being all of the jurisdictions in which the conduct of its business or its ownership or leasing of properties requires such qualification; and the Company owns all of the stock of the Subsidiaries, free and clear of any lien, pledge or other encumbrance;
(iii) except as otherwise set forth in the Prospectus, and except with respect to the location of certain poles, wires and other facilities within public highways or over or under public or navigable waters (the status of which does not in any case threaten to affect materially the Company's ability to conduct its present business), the Company has such valid franchises, certificates of convenience and necessity, operating rights, licenses, permits, consents, approvals, authorizations and/or orders of governmental bodies, political subdivisions or regulatory authorities, free from materially burdensome restrictions, as are necessary for the acquisition, construction and ownership of the properties owned or leased by it and the maintenance and operation of the properties operated by it and the conduct of the business carried on by it as described in the Registration Statement and the Prospectus, and, to the best of the knowledge of such counsel, the Company is not in default or violation of any of such franchises, certificates of convenience and necessity, operating rights, licenses, permits, consents, approvals, authorizations and/or orders of governmental bodies, political subdivisions or regulatory authorities, to the extent which would materially affect the conduct of such business, and the Company is not, to any material extent, in violation of any applicable Federal, state or other laws and regulations;
(iv) the Firm Shares or the Option Shares, as the case may be, have been duly and validly authorized and issued and, when delivered against payment therefor as provided herein, will be fully paid and non-assessable and free and clear of any claim, lien, encumbrance or security interest on behalf of, or arising through, the Company;
(v) appearing in the Registration Statement and the Prospectus fairly presents the information called for by the Act and the Rules and Regulations;
(vi) the Delaware Public Service Commission and the Virginia State Corporation Commission have issued orders (to be identified by date and docket number) authorizing the issuance and sale of the Shares and authorizing generally the transactions relating thereto (including permitting the Company to enter into this Agreement and perform its obligations hereunder). Neither of such orders contains any condition inconsistent with the provisions hereof nor, to the best knowledge of such counsel, has either of such orders been rescinded, modified or stayed, and no further action is required to be taken by, and no further authorization, consent or approval is required to be obtained from, any governmental authority having jurisdiction in connection with the authorization, issuance and sale of the Shares (other than in connection with state securities or blue sky laws as to which counsel need express no opinion);
(vii) the statements in the Prospectus that are stated therein to have been made on the authority of such counsel as an expert have been reviewed by such counsel and, as to matters of law and legal conclusions, are correct and fairly present the information required to be shown;
(viii) such counsel does not know of any legal or governmental proceedings required to be described in the Registration Statement or 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, incorporated by reference into the Prospectus or filed as exhibits to the Registration Statement by the Act or by the Rules and Regulations that are not described, incorporated by reference or filed as required;
(ix) is subject, or any order, rule or regulation known to such counsel applicable to the Company or any of the Subsidiaries of any court or other governmental body;
(x) this Agreement has been duly authorized, executed and delivered by the Company and is valid and binding on the Company, except that rights to indemnity hereunder may be limited under securities laws;
(xi) the Registration Statement has become effective under the Act, and, to the best knowledge of such counsel, no stop order with respect thereto has been issued, no order directed to the adequacy or accuracy of any Incorporated Document has been issued by the Commission and no proceeding for any such purpose has been initiated or is pending or, to the best knowledge of such counsel, contemplated by the Commission; at the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was first filed with the Commission pursuant to Rule 424(b), the Prospectus, complied as to form in all material respects with the requirements of the Act and the Rules and Regulations, and the Incorporated Documents, when filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; and such counsel has no reason to believe that (i) the Registration Statement at the time the Registration Statement became effective, and at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Prospectus, at the time the Prospectus was filed with the Commission pursuant to Rule 424(b) and at the Closing Date, 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 Statements therein, in the light of the circumstances under which they were made, not misleading, except that such counsel need express no opinion as to the financial statements and other financial data included therein;
(xii) the Shares have been listed, upon official notice of issuance, on the New York Stock Exchange and the Philadelphia Stock Exchange; and
(e) On the Closing Date, and, with respect to the Option Shares, on the Option Closing Date, the Representative shall have received the favorable opinion of Reid & West LLPXriest, counsel for the Companyseveral Underwriters, shall have furnished dated as of such date, satisfactory in form, scope and substance to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such the sufficiency of all corporate proceedings and other legal matters relating to the Shares, the form of the Registration Statement and the Prospectus, and as to the execution and authorization of this Agreement and the transactions contemplated hereby as the Underwriters Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request may have requested for the purpose of enabling them to pass upon such matters. In rendering such opinions, Reid & Xriest may rely as to matters governed by Delaware, Maryland, New Jersey, Ohio, Pennsylvania and Virginia law upon the opinion of Dale X. Xxxxxxxx, Xxneral Counsel for the Company, who may in turn rely upon the opinions of other counsel as to certain legal conclusions affected by the laws of Maryland, New Jersey, Ohio, Pennsylvania and Virginia.
(f) At On the time of date hereof, at the execution of this AgreementClosing Date and, with respect to the Option Shares, on the Option Closing Date, the Representative shall have received from Ernst letters of Coopers & Young LLP a letterLybrxxx, addressed xxted as of such dates, to the Underwriters, executed effect set forth in Schedule III annexed hereto and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to such other matters as to which the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the ProspectusRepresentative shall have inquired.
(g) On the effective date of any post-effective amendment Closing Date and, with respect to any Registration Statement and the Option Shares, on the Option Closing Date, the Representative shall have received a letter (certificate or certificates, dated as of such date, of the “bring-down letter”) from Ernst & Young LLP addressed President or a Vice President or the principal accounting officer of the Company to the Underwriters effect that, to the best of his or her knowledge based on a reasonable investigation:
(i) the representations and dated warranties of the Company in this Agreement are true and correct, as though made on and as of the Closing Date confirming, as of or 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 General Disclosure Package and the ProspectusOption Closing Date, as the case may be, as of a date not more than three (3) business days and the Company has complied with all the agreements and satisfied all the conditions required by this Agreement to be performed or satisfied by the Company on or prior to the date of Closing Date or the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Option Closing Date, of its Chief Executive Officer as the case may be; and
(ii) Date, did not and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date did does not include any untrue statement of a material fact and did not or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure PackageProspectus, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, when the Prospectus Supplement was filed with the Commission and each amendment or supplement thereto, as of the respective date thereof at all times subsequent thereto up to and as of including the Closing Date, did not and does not include any untrue statement of a material fact and did not or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading, (ii) and, since the effective date of the Initial Registration Statement, there has occurred no event has occurred which should have been required to be set forth in an amended Registration Statement or a supplement or amendment to the Registration Statements, the General Disclosure Package or the supplemented Prospectus that has which had not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably requestforth. All the opinions, letters, evidence certificates and certificates documents mentioned above or elsewhere in this Agreement shall be deemed to will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel Reid & Xriest. The Company will furnish the Representative with such conformed copies of such opinions, letters, certificates and documents as the Representative may reasonably request. If any condition to the Underwriters' obligations hereunder to be satisfied on or prior to the Closing Date is not so satisfied, the Representative may terminate this Agreement without liability on the part of any Underwriter or the Company, except for the Underwritersexpenses to be paid or reimbursed by the Company pursuant to Section 4(e) and except for any liability under Section 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Delmarva Power & Light Co /De/)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time date hereof and on the Closing Date (as if made at the Closing Date), of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Registration Statements Prospectus shall have become effective under been filed with the Securities ActCommission in a timely fashion in accordance with Section 4(a) hereof; all filings (including, without limitation, the Final Term Sheet) required by Rule 424(b) or Rule 433 of the Rules and Regulations shall have been made within the time periods prescribed by such Rules, and no such filings will have been made without the consent of the Representatives (such consent not to be unreasonably withheld or delayed); no stop order suspending the effectiveness of any the Registration Statement or any part thereofamendment or supplement thereto, preventing or suspending the use of any Base Preliminary Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification of the Notes for offering or sale in any part thereof jurisdiction shall have been issued and issued; no proceedings for that purpose the issuance of any such order shall have been initiated or threatened pursuant to Section 8A under of the Securities Act Act; no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto shall have been initiated or, to received by the Company’s knowledge, threatened by ; and any request of the Commission, and all requests Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been disclosed to the Representatives and complied with to the Representatives’ reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebysatisfaction.
(b) None The Representatives shall have received a letter, dated the date of this Agreement, from Ernst & Young LLP (“E&Y”) and KPMG LLP (“KPMG”), as applicable, addressed to the Underwriters, confirming that they are independent public accountants within the meaning of the Underwriters Securities Act and the applicable published rules and regulations thereunder (“Rules and Regulations”) and to the effect that:
(i) in their opinion the financial statements and schedules examined by them and included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
(A) at the date of the latest available balance sheet read by such accountants, and at a subsequent specified date not more than three business days prior to the date of this Agreement, there was any decrease in stockholders’ equity or change in the capital stock or any increase in short-term indebtedness or long-term debt of the Company and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net current assets or total assets, as compared with amounts shown on the latest balance sheet included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus; or
(B) for the period from the closing date of the latest income statement included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year and with the period of corresponding length ended the date of the latest income statement included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus, in consolidated net sales, net operating income, the total or per share amounts of net earnings or in the ratio of earnings to fixed charges, or any increases or decreases, as the case may be, in other items specified by the Representatives;
(C) except in all cases set forth in clauses (B) and (C) above for changes, increases or decreases which the most recent Preliminary Prospectus or the Prospectus discloses have occurred or may occur or which are described in such letter;
(iii) the comparable financial information included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus give effect to assumptions made on a reasonable basis and present fairly the historical and proposed transactions contemplated hereby and by the most recent Preliminary Prospectus or the Prospectus, and nothing came to their attention that caused them to believe that the comparable financial information included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus has not been properly compiled and that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of the comparable financial information; and
(iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts), numerical data and other financial information contained in the most recent Preliminary Prospectus or the Prospectus (in each case to the extent that such dollar amounts, percentages, numerical data and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages, numerical data and other financial information to be in agreement with such results except as otherwise specified in such letter.
(c) The Representatives shall have discovered and disclosed received a letter, addressed to the Company on or Underwriters, dated the Closing Date, from E&Y and KPMG, as applicable, which meets the requirements of subsection (b) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each purposes of this Agreement, the Stock, the Registration Statements, the General 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 matterssubsection.
(d) Fenwick Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries, taken as a whole, which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Notes; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on the United States, outbreak or escalation of major hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Notes.
(e) The Representatives shall have received from Xxxxx Xxxx & West LLPXxxxxxxx, counsel for the Company, shall have furnished to the Representative such counsel’s written an opinion and negative assurance statement10b-5 letter, each addressed to the Underwriters and Underwriters, dated the Closing DateDate substantially in the form of Exhibits B and C hereto, respectively.
(f) The Representatives shall have received from Xxxxx X. Xxxxxxxxx, General Counsel and Secretary of the Company, an opinion, addressed to the Underwriters, dated the Closing Date substantially in the form of Exhibit D hereto.
(g) The Representatives shall have received from Xxxxx & XxXxxxx LLP, counsel to the Underwriters, such opinion or opinions, addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing DateRepresentatives, with respect to such the Notes, Indenture, Registration Statement, Prospectus and Disclosure Package and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fh) At the time of the execution of this Agreement, the Representative The Representatives shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer the President or any Vice President and its Chief Financial Officer stating the principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, the representations and warranties of the Company in this Agreement are true and correct and correct, (ii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for any such purpose have been initiated or threatened and (iviii) there has not been, subsequent to the date dates of the most recent audited financial statements included or incorporated by reference in the General Disclosure Packagemost recent Preliminary Prospectus and the Prospectus, any there has been no material adverse change change, nor any development or event involving a prospective material adverse change, in the condition (financial position or other), business, properties or results of operations of the Company or any of and its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as other than those set forth in or contemplated by the Prospectus.
(i) Since most recent Preliminary Prospectus and the date of the latest audited financial statements included in the General Disclosure Package Prospectus or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) certificate. The Company shall have filed a Notification: Listing of Additional Shares will furnish the Underwriters with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities such conformed copies of such jurisdictions.
(n) The Representative shall have received the written agreementsopinions, substantially in the form of Exhibit A heretocertificates, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates letters and documents as the Representative may Underwriters reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere The Representatives may in this Agreement shall be deemed to be in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for obligations of the UnderwritersUnderwriters hereunder.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Conversion Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) Prior to the Closing Date, the Company shall have filed with the Secretary of State of the State of Delaware the Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock, substantially in the form as attached to Exhibit C hereto.
(q) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the --------------------------------------- several Underwriters hereunderto purchase and pay for the Securities, and the closing of the sale of the Stockas provided herein, are shall be subject to the accuracy, when made as of the date hereof and as of the Applicable Time and Closing Date (as if made on the Closing such Date), of the representations and warranties of the Trust and Company contained herein, to the accuracy of the statements of the Trustees and Company officers made in any certificates delivered pursuant to the provisions hereof, to the performance by the Trust and the Company of its their obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no No stop order suspending the effectiveness of any the Registration Statement Statement, or any part thereof, order preventing or suspending the use of any Base the Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued issued; no order of the Commission directed to the adequacy or accuracy of any Incorporated Document shall be in effect; and no proceedings for that any such purpose or pursuant to Section 8A under the Securities Act shall have been initiated instituted or be pending or, to the Company’s knowledgeknowledge of the Trust, the Company or the Representative, shall be contemplated or threatened by the Commission, and all requests ; any request of the Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of Xxxxxx Xxxx & Priest LLP, counsel for the Representativeseveral Underwriters; no amendment to the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Statement or Prospectus shall have been filed withhereafter to which the Representative or Xxxxxx Xxxx & Priest LLP, counsel for the Commission within several Underwriters, shall have reasonably and promptly objected in writing after having received reasonable notice and a copy thereof; there shall be in full force and effect on the applicable time period prescribed for such filing by, date of this Agreement appropriate orders of the New Jersey Board of Public Utilities permitting the transactions contemplated by this Agreement and described in compliance with, the Rules and Regulations and Prospectus substantially in accordance with Section 4(a), the terms and the Rule 462(b) Registration Statement, if any, conditions set forth herein and therein; such order shall have become effective immediately upon its filing contain no condition inconsistent with the Commissionprovisions hereof or unacceptable to the Representative and shall be issued under circumstances that in the Representative's reasonable judgment are appropriate for the protection of the Underwriters; and FINRA shall have raised no objection on or prior to the fairness and reasonableness Closing Date, such order shall not have been rescinded, modified or stayed, or the right of the terms Company to operate thereunder restrained, or be subject to any litigation or proceeding pending, or to the knowledge of this Agreement the Representative, the Trust or the transactions contemplated herebyCompany, threatened; and there shall not have occurred any decrease in the ratings of any of the securities of the Company or of the Securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the 1933 Act Regulations) and such organization shall not have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the securities of the Company or of the Securities.
(b) None Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in or contemplated by the Prospectus, there shall not have been any change in the capital stock, short-term debt or long-term debt of the Underwriters Company, or any adverse change or any development involving a prospective adverse change in the condition, financial or otherwise, or in the earnings, business, net worth or results of operations of the Trust or the Company, all or any of which, in the Representative's reasonable judgment, materially impairs the investment quality of the Securities; and no Underwriter shall have discovered and disclosed in writing to the Company on or prior to the Closing Date that any the Registration Statement or any amendment or supplement thereto contains Prospectus contained an untrue statement of a fact which, in the opinion of Xxxxxx Xxxx & Priest LLP, counsel for the Underwriters, is material material, or omits to state any a fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to The authorization and issuance of the authorization, form and validity of each of this AgreementSecurities, the StockGuarantee, the Debentures, the Registration StatementsStatement, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and the transactions contemplated hereby all corporate proceedings and other legal matters incident thereto shall be reasonably satisfactory in all material respects to counsel for Xxxxxx Xxxx & Priest LLP, and the Underwriters, Trust and the Company shall have furnished to Xxxxxx Xxxx & Priest LLP such counsel all documents and information that as they reasonably may reasonably request to enable them to pass upon such mattersbe satisfied with respect to the matters referred to in this subparagraph and to furnish to the Representative an opinion, dated as of the Closing Date, as required by subparagraph (f) of this Section 5.
(d) Fenwick On the Closing Date, the Representative shall have received the favorable opinions of (a) Xxxxx X. Xxxxx, General Counsel of the Company, (b) Simpson, Thacher & West Xxxxxxxx, Counsel for the Company, and (c) Xxxxxxxx, Xxxxxx & Finger, P.A., Special Delaware Counsel for the Company and the Trust, each dated as of such date, in substantially the forms attached hereto as Exhibits A, B and C hereto.
(e) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx Xxxx & Priest LLP, counsel for the Companyseveral Underwriters, shall have furnished dated as of such date, satisfactory in form, scope and substance to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such the sufficiency of all corporate proceedings and other legal matters relating to the Securities, the form of the Registration Statement and the Prospectus, and as to the execution and authorization of this Agreement and the transactions contemplated hereby as the Underwriters Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request may have requested for the purpose of enabling them to pass upon such matters. In rendering such opinion, Xxxxxx Xxxx & Priest LLP may rely as to certain matters of Delaware law relating to the Trust, the Securities and the Trust Agreement upon the opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., Special Delaware Counsel for the Trust and the Company, which shall be delivered in accordance with Section 5(d) hereto, and as to matters governed by New Jersey law upon the opinion of [ ].
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a the letter (the “bring-down letter”) from Ernst & Young LLP addressed of PricewaterhouseCoopers L.L.P., dated as of such date, to the Underwriters effect set forth in Schedule III annexed hereto and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to such other matters involving changes or developments since as to which the respective dates Representative shall have inquired.
(g) On the Closing Date, the Representative shall have received the letter of Deloitte & Touche LLP, dated as of such date, to the effect set forth in Schedule IV annexed hereto and with respect to such other matters as to which specified financial information is given in the General Disclosure Package Representative shall have inquired.
(h) On the Closing Date, the Representative shall have received certificates, dated as of such date, of the President or a Vice President or the principal accounting officer of the Company and a Trustee, on behalf of the ProspectusTrust, respectively, to the effect that, to the best of his or her knowledge based on a reasonable investigation:
(i) the representations and warranties of the Trust or the Company, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer are true and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Timecorrect, as of the date of this Agreement though made on and as of the Closing Date Date, and the Trust or the Company, as the case may be, has complied with all the agreements and satisfied all the conditions required by this Agreement to be performed or satisfied by the Trust or the Company, as the case may be, on or prior to the Closing Date; and
(ii) he or she has examined the Registration Statement and the Prospectus, and, in his or her opinion, the Registration Statement, when it became effective and at all times subsequent thereto up to and including the Closing Date, did not and does not include any untrue statement of a material fact and did not or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure PackageProspectus, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, when the Prospectus Supplement was filed with the Commission and each amendment or supplement thereto, as of the respective date thereof at all times subsequent thereto up to and as of including the Closing Date, did not and does not include any untrue statement of a material fact and did not or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading, (ii) and, since the effective date of the Initial Registration Statement, there has occurred no event has occurred which should have been required to be set forth in an amended Registration Statement or a supplement or amendment to the Registration Statements, the General Disclosure Package or the supplemented Prospectus that has which had not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably requestforth. All the opinions, letters, evidence certificates and certificates documents mentioned above or elsewhere in this Agreement shall be deemed to will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel Xxxxxx Xxxx & Priest LLP. The Company will furnish the Representative with such conformed copies of such opinions, letters, certificates and documents as the Representative may reasonably request. If any condition to the Underwriters' obligations hereunder to be satisfied on or prior to the Closing Date is not so satisfied, the Representative may terminate this Agreement without liability on the part of any Underwriter or the Company, except for the Underwritersexpenses to be paid or reimbursed by the Company pursuant to Section 4(e) and except for any liability under Section 7 hereof.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the each Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Each of the Registration Statements have Statement and the ADS Registration Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or the ADS Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement, the ADS Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b4(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; of this Agreement and FINRA shall have raised no unresolved objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) The Representatives shall have received on the Closing Date a certified copy of the minutes or resolutions of the Company’s Board or shareholders, as applicable, resolving, inter alia, to approve the execution by the Company of this Agreement, the Deposit Agreement, the Registration Statement, the General Disclosure Package, the Listing Prospectus, each Issuer Free Writing Prospectus and the Prospectus, to cancel the preferential subscription rights of the existing shareholders of the Company, to increase the Company’s share capital, to issue the ADSs and the underlying Ordinary Shares, the sale of the ADSs, the listing of the ADSs on the Exchange and the listing of the Ordinary Shares on Euronext.
(c) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General Disclosure Package, the Listing Prospectus, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the 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.
(cd) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the StockDeposit Agreement, the Securities, the Registration StatementsStatement, the ADS Registration Statement, the General Disclosure Package, the Listing Prospectus, each Issuer Free Writing Prospectus and the 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 to 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.
(de) Fenwick & West LLP, counsel for the Company, Xxxxxxx Procter LLP shall have furnished to the Representative Representatives such counsel’s written opinion and negative assurance statementletter, each as counsel to the Company, addressed to the Underwriters and each dated the as of such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(ef) Freshfields Bruckhaus Xxxxxxxx LLP shall have furnished to the Representatives such counsel’s written opinion, as Dutch counsel to the Company, addressed to the Underwriters and each dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(g) Freshfields Bruckhaus Xxxxxxxx LLP shall have furnished to the Representatives such counsel’s written opinion, as Belgian counsel to the Company, addressed to the Underwriters and each dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(h) Xxxxxxx & Gage LLP shall have furnished to the Representatives such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Underwriters and each dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(i) The Representative Representatives shall have received from Xxxxxxx Procter Xxxxxx LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the as of such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fj) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young LLP Deloitte Accountants B.V., a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Representatives (i) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package Package, the Listing Prospectus and the Prospectus.
(gk) On the effective date of any post-effective amendment to any the Registration Statement and on the such Closing Date, the Representative Representatives shall have received a letter (the “bring-down letter”) from Ernst & Young LLP Deloitte Accountants B.V. addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package Package, the Listing Prospectus and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Representatives concurrently with the execution of this Agreement pursuant to paragraph (fi) of this Section 6.
(hl) The Company shall have furnished to the Representative Representatives a certificate, dated the such Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating in their respective capacities as officers of the Company on behalf of the Company and not in their individual capacities that (i) such officers have carefully examined no stop order suspending the effectiveness of the Registration Statement including, for avoidance of doubt, the ADS Registration Statement, the General Disclosure Package, or any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each post-effective amendment thereto, at shall be in effect and no proceedings for such purpose shall have been instituted or, to their knowledge, threatened by the Applicable TimeCommission, as of (ii) for the period from and including the date of this Agreement through and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the including such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that there has not been so set forth thereinoccurred a Material Adverse Effect, (iii) to their knowledge, after reasonable investigation, as of the such Closing Date, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiariesCompany, or any change or development that, singularly individually or in the aggregate, would reasonably be expected to involve a material adverse change in the financial position or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects operations of the Company and its subsidiaries taken as a whole, except as set forth in the ProspectusCompany.
(im) At or prior to each Closing Date, the Offered ADSs shall be eligible for clearance and settlement through the facilities of the DTC.
(n) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofPackage, (i) neither the Company and nor any of its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of businessbusiness and the grant of stock awards under existing equity incentive plans described in the Registration Statement, the General Disclosure Package, the Listing Prospectus and the Prospectus) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, properties, assets, general affairs, management, financial position, stockholdersshareholders’ equity or results of operations of the Company or any of and its subsidiaries, taken as a whole, otherwise than as set forth in the General Disclosure Package, the Listing Prospectus or the Prospectus, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) 6(m), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock Securities on the terms and in the manner contemplated in the General Disclosure Package.
(jo) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which regulatory authority that would prevent the issuance or sale of the Stock Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any foreign, federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kp) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company’s corporate credit rating or the rating accorded the Company’s debt securities 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 (other than an announcement with positive implications of a possible upgrading), the Company’s corporate credit rating or the rating of any of the Company’s debt securities.
(q) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in any of the Company’s securities shall have been suspended or materially limited by the Commission, the Exchange or Euronext, or trading in securities generally on the NASDAQ New York Stock Exchange, Nasdaq Global Market Select Market, Nasdaq Global Market, Nasdaq Capital Market, the NYSE MKT LLC or Euronext 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal federal or state authorities in the United States or authorities in the Netherlands or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesStates or with respect to Clearstream or Euroclear systems in Europe, (iii) the United States or the Netherlands shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United StatesStates or the Netherlands, or there shall have been a declaration of a national emergency or war by the United States or the Netherlands or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States or the Netherlands shall be such) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery of the Stock Securities on the terms and in the manner contemplated in the General Disclosure Package Package, the Listing Prospectus and the Prospectus.
(lr) The Company shall have filed received a Notification: Listing of Additional letter from Euronext confirming that, subject to their issuance, on the Closing Date the Ordinary Shares with underlying the NASDAQ Global Market and ADSs shall have received no objection thereto been approved for listing on Euronext and a letter from the NASDAQ Global MarketAFM confirming the notification of the Listing Prospectus to the FSMA.
(ms) The Representative Representatives shall have received on and as of the such Closing Date satisfactory evidence a certified copy of an extract of the good standing trade register of the Company Netherlands Chamber of Commerce in respect of the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictionsCompany.
(nt) The Representative Representatives shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons officers, directors, and entities all shareholders and optionholders of the Company listed in Exhibit B Schedule D to this Agreement.
(ou) The Company shall have furnished to the Underwriters Representatives a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel to the Underwriters and customary for the Underwriterstype of offering contemplated by this Agreement.
(pv) The Custodian shall have furnished to the Representatives a certificate satisfactory to the Representatives of one of its authorized officers with respect to the deposit with it of the Ordinary Shares underlying the Offered ADSs.
(w) The Depositary shall have furnished or caused to be furnished to the Representatives a certificate satisfactory to the Representatives of one of its authorized officers with respect to the issuance of the Offered ADSs, the execution, issuance, countersignature and delivery of the ADRs evidencing the Offered ADSs pursuant to the Deposit Agreement, and such other customary matters related thereto as the Representatives may reasonably request.
(x) The Company shall have furnished to the Representatives a certificate, dated such Closing Date, of its Chief Financial Officer, in form and substance reasonably satisfactory to the Representatives.
(y) On or prior to the such Closing Date, the Company shall have furnished to the Representative Representatives such further certificates and documents as the Representative Representatives 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Argenx Se)
Conditions of Underwriters’ Obligations. The respective several obligations of the several Underwriters hereunder, and to purchase the closing of the sale of the Stock, are subject to the accuracy, when made and as of the Applicable Time and Firm Shares under this Agreement on the Closing Date, the Additional Shares, if any, on any Option Closing Date and the Shares of any Selling Stockholder, if any, on any Option Closing Date are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained hereinin this Agreement shall be true and correct on the Closing Date, to or on each Option Closing Date, if any, with the accuracy same force and effect as if made on and as of the statements of Closing Date, or on each Option Closing Date, if any.
(b) If the Company made in any certificates pursuant is required to file a Rule 462(b) Registration Statement after the provisions hereofeffectiveness of this Agreement, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(asuch Rule 462(b) The Registration Statements Statement shall have become effective under by 10:00 P.M., New York City time, on the Securities Act, date of this Agreement; and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, threatened commenced or shall be pending before or contemplated by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(bc) None You shall have received on the Closing Date a certificate dated the Closing Date, signed by Xxxxx Xxxxx and Xxxxx Xxxxxx, in their capacities as the President and Chief Financial Officer of the Underwriters shall have discovered Company, confirming the matters set forth in Sections 6(z), 9(a) and disclosed 9(b) and that the Company has complied with all of the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied by the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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 mattersDate.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since Since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and Prospectus other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure PackageProspectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, (ii) there shall not have been any change or any development involving a prospective change in the capital stock (other than stock option and warrant exercises and stock repurchases or in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of subsidiaries and (iii) neither the Company or nor any of its subsidiariessubsidiaries shall have incurred any liability or obligation, otherwise than as set forth in the General Disclosure Packagedirect or contingent, the effect of which, in any such case described in clause (i9(d)(i), 9(d)(ii) or (ii) of this paragraph (i) is9(d)(iii), in the judgment of the Representativeyour judgment, so is material and adverse as to make and, in your judgment, makes it impracticable or inadvisable to proceed with market the sale or delivery of the Stock Shares on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(le) The Company All the representations and warranties of each Selling Stockholder contained in this Agreement shall have filed a Notification: Listing of Additional be true and correct on each Option Closing Date on which such Selling Stockholder sells any Shares with the NASDAQ Global Market same force and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative effect as if made on and as of each such Option Closing Date and you shall have received on each such Option Closing Date a certificate dated such Option Closing Date from each Selling Stockholder to such effect and as to the effect that such Selling Stockholder has complied with all of the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied by such Selling Stockholder on or prior to such Option Closing Date.
(f) You shall have received on the Closing Date opinions (satisfactory evidence to you and counsel for the Underwriters), dated the Closing Date, of Xxxxx X. Xxxxxxxxx, General Counsel to the good standing of Company, Xxxxxxxx Xxxxxxx LLP, counsel for the Company in and the State of Delaware Selling Stockholders and existence as a foreign corporation in the State of WashingtonXxxxxx Xxxxxx & Xxxxxxx, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B special Nevada counsel to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for to the Underwriters.
(pg) On You shall have received on the Closing Date an opinion, dated the Closing Date, of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel for the Underwriters, reasonably satisfactory to you.
(h) You shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to you, from Ernst & Young LLP, independent public accountants, containing the information and statements of the type ordinarily included in accountants' "comfort letters" to Underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(i) The Company shall have delivered to you the agreements specified in Section 2 hereof which agreements shall be in full force and effect on the Closing Date.
(j) The Shares shall have been duly approved for listing on the Nasdaq National Market.
(k) The Company and the Selling Stockholders shall not have failed on or prior to the Closing Date to perform or comply with any of the agreements herein contained and required to be performed or complied with by the Company or the Selling Stockholders, as the case may be, on or prior to the Closing Date.
(l) You shall have received on the Closing Date, a certificate of each Selling Stockholder who is not a U.S. Person (as defined under applicable U.S. federal tax legislation) to the effect that such Selling Stockholder is not a U.S. Person, which certificate may be in the form of a properly completed and executed United States Treasury Department Form W-8 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). The several obligations of the Underwriters to purchase any Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the Company shall have furnished due authorization and issuance of such Additional Shares and other matters related to the Representative issuance of such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the UnderwritersAdditional Shares.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time of Sale and on the each Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the each Closing Date that any the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings action incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration StatementsStatement, the General 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 Company documents and information that they it may reasonably request to enable them it to pass upon such matters.
(d) Fenwick Skadden, Arps, Slate, Xxxxxxx & West LLP, counsel for the Company, Xxxx LLP shall have furnished to the Representative such counsel’s written opinion and a negative assurance statementletter, each as counsel to the Company, addressed to the Underwriters and dated the each Closing Date, in the form set forth on Exhibit B-1 and substance reasonably satisfactory to the RepresentativeB-2 hereto.
(e) Xxxxxxxxx Traurig LLP shall have furnished to the Representative such counsel’s written opinion, as special intellectual property counsel to the Company, addressed to the Underwriters and dated each Closing Date, in the form set forth on Exhibit C hereto.
(f) Xxxxxxxxx & Xxxxxxx LLP shall have furnished to the Representative such counsel’s written opinion, as special regulatory counsel to the Company, addressed to the Underwriters and dated each Closing Date, in the form set forth on Exhibit D hereto.
(g) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the each Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request it requests for enabling them it to pass upon such matters.
(fh) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young CCR LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 StatementsStatement, the General Disclosure Package and the Prospectus.
(gi) On the effective date of any post-effective amendment to any the Registration Statement and on the each Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young CCR LLP addressed to the Underwriters and dated the each Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 66(h).
(hj) The Company shall have furnished to the Representative a certificate, dated the each Closing Date, of its Chief Executive Officer Chairman of the Board or President and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleadingProspectus, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to best of their knowledgeknowledge after reasonable investigation, as of the each Closing Date, 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 the each Closing Date, and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiariesCompany, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(ik) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases a change in number of Common Stock shares outstanding due to the ordinary course issuance of businessshares upon exercise of options or warrants) or long-term debt of the Company or any of its subsidiariesCompany, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiariesCompany, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) Section 6(k), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jl) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(km) 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, NASDAQ Global Market or NASDAQ Capital Market or in the over-the-counter market, or trading in any securities the Common Stock of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or been the subject of an act of terrorism, terrorism or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(ln) The Company NASDAQ Capital Market shall have filed a Notification: Listing approved the Stock for listing therein, subject only to official notice of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Marketissuance.
(mo) The Representative shall have received on and as of the each Closing Date satisfactory evidence of the good standing of the Company in the State its jurisdiction of Delaware incorporation and existence its good standing as a foreign corporation in such other jurisdictions as the State of WashingtonRepresentative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities governmental authorities of such jurisdictions.
(np) The Representative shall have received the written agreementsLock-Up Agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B Schedule IV to this Agreement.
(oq) The Company Representative shall have furnished to received on the Underwriters Closing Date a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pr) On or prior to the each Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and to purchase the closing of the sale of the Stock, Securities hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) (i) The Registration Statements have become effective under the Securities ActProspectus, and no stop order suspending any supplement thereto, have been filed in the effectiveness of manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); the final term sheet contemplated by Section 5(t) hereof and any Registration Statement or any part thereof, preventing or suspending other material required to be filed by the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof Company pursuant to Rule 433(d) shall have been issued filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 and no proceedings for that purpose or pursuant to Section 8A under (ii) any request of the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebyUnderwriters.
(b) None of the Underwriters shall have discovered and disclosed Subsequent to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact whichExecution Time, in the opinion of counsel for the Underwritersor, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreementif earlier, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Registration Statement (exclusive of any amendment thereto), the Disclosure Package and the Prospectus, as the case may be, as Prospectus (exclusive of a date not more than three (3) business days prior to the date of the bring-down letterany amendment thereof), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock occurred: (other than stock option and warrant exercises and stock repurchases in the ordinary course of businessi) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, general affairsproperties, managementnet worth, or results of operations of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in the Disclosure Package and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), the effect of which, in the sole judgment of the Representatives is so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendments thereto), the Disclosure Package and the Prospectus (exclusive of any supplement thereto); or (ii) any event or development relating to or involving the Company and its subsidiaries or any officer or director of the Company and its subsidiaries which makes any statement made in the Disclosure Package or the Prospectus untrue or which, in the opinion of the Company and its counsel or the Representatives and their counsel, requires the making of any addition to or change in the Disclosure Package in order to state a material fact required by the Act or any other law to be stated therein, or necessary in order to make the statements therein not misleading, if amending or supplementing the Disclosure Package to reflect such event or development would, in the opinion of the Representatives, adversely affect the market for the Securities.
(c) The Representatives shall have received on the Closing Date opinions of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the Company, dated as of such date and addressed to the Representatives, substantially in the forms attached hereto as Exhibit A-1 and Exhibit A-2.
(d) The Representatives shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated as of such date and addressed to the Representatives with respect to such matters as the Underwriters may request.
(e) The Representatives shall have received letters addressed to the Underwriters and dated as of the date hereof and as of the Closing Date from Ernst & Young LLP, independent registered public accounting firm, substantially in the form heretofore approved by the Underwriters; provided that the letter delivered on the date hereof and on the Closing Date shall use a “cut-off” date no more than three (3) Business Days prior to such dates.
(f) (A) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Commission at or prior to the Closing Date; (B) there shall not have been any material change in the capital stock of the Company nor any material increase in the short-term or long-term debt (including any off-balance sheet activities or transactions) of the Company and its subsidiaries (other than in the ordinary course of business) from that set forth or contemplated in the Registration Statement, the Disclosure Package or the Prospectus (or any amendment or supplement thereto); (C) there shall not have been, since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), except as may otherwise be stated in the Registration Statement, the Disclosure Package and Prospectus (or any amendment or supplement thereto), any material adverse change in the condition (financial positionor other), stockholders’ equity business, prospects, properties, net worth or results of operations of the Company or its subsidiaries; (D) the Company and its subsidiaries shall not have any liabilities or obligations (financial or other), direct or contingent (whether or not in the ordinary course of business), that are material to the Company or its subsidiaries, otherwise other than as set forth those reflected in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, Registration Statement or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
Prospectus (lor any amendment or supplement thereto); and (E) The all the representations and warranties of the Company contained in this Agreement shall have filed a Notification: Listing be true and correct at and as of Additional Shares with the NASDAQ Global Market Execution Time and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence as if made at and as of such time or on and as of such date, and the good standing Representatives shall have received a certificate, dated the Closing Date and signed by either the chief executive officer or chief operating officer and the chief financial officer of the Company (or such other officers as are acceptable to the Representatives), to the effect set forth in the State of Delaware this Section 8(f) and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictionsSection 8(g) hereof.
(ng) The Representative Company shall not have received failed at or prior to the written agreementsClosing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder or under the Indenture, substantially in at or prior to the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this AgreementClosing Date.
(oh) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange 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.
(i) The Company shall have furnished or caused to be furnished to the Underwriters Representatives a Secretary’s Certificate certificate of the Company, ’s Chief Financial Officer with respect to certain accounting and financial matters in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentatives and their counsel.
(pj) On or prior to the Closing Date, the The Company shall have furnished or caused to be furnished to the Representative Representatives such further certificates and documents as the Representative may reasonably requestRepresentatives shall have requested. All such opinions, letterscertificates, evidence letters and certificates mentioned above or elsewhere in this Agreement shall be deemed to other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance reasonably satisfactory to the Representatives and their counsel. Any certificate or document signed by any officer of the Company and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by the Company to the Underwriters as to the statements made therein. If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled by the Representatives at, or at any time prior to, the Closing Date. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. With respect to the Closing Date, the documents required to be delivered by this Section 8 shall be delivered at the offices of Xxxxxx & Xxxxxx L.L.P., Attn: Xxxxxxxxxxx X. Xxxxx, Esq., counsel for the Underwriters, at 0000 Xxxxxxxxxxxx Xxxxxx XX, Xxxxx 000 Xxxx, Xxxxxxxxxx, XX 00000, on or prior to such date.
Appears in 1 contract
Samples: Underwriting Agreement (National Retail Properties, Inc.)
Conditions of Underwriters’ Obligations. The respective Except as otherwise provided in Schedule II, the obligations of the several Underwriters hereunder, to purchase and pay for the closing of the sale of the Stock, Offered Securities pursuant to this Agreement are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties of the Company contained herein, to the accuracy herein or in certificates of the statements any officer of the Company made in or any certificates Subsidiary delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and further conditions:
(a) The Registration Statements have become effective under At the Securities ActClosing Date, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued under the 1933 Act and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated instituted or shall be pending or, to your knowledge or the knowledge of the Company’s knowledge, threatened shall be contemplated by the Commission, and all requests for additional information any request on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) for additional information shall have been complied with to the reasonable satisfaction of counsel for the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebyUnderwriters.
(b) None At the Closing Date, you shall have received signed opinions of Sidley & Austin, counsel for the Company, and Burtxx Xxxxxxx, Xxneral Counsel of the Underwriters Company, dated as of the Closing Date, together with signed or reproduced copies of such opinion for each of the other Underwriters, in form and substance satisfactory to counsel for the Underwriters, to the effect stated in Schedule III hereto.
(c) At the Closing Date, you shall have discovered and disclosed received a signed opinion of Cleary, Gottlieb, Steex & Xamixxxx, xxunsel for the Underwriters, dated as of the Closing Date, together with signed or reproduced copies of such opinion for each of the other Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement, the Offered Securities, the Registration Statement, the Prospectus and other related matters as you shall have requested. 12
(d) You shall have received a certificate of the President or a Vice President, and the Treasurer or the Controller, of the Company, dated as of the Closing Date, to the effect that (i) there has not been, since the respective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Change, (ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed and satisfied at or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in and (iii) the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material representations and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General 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 opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light warranties of the circumstances Company set forth in which they were made, not misleading.
(cSection 1(a) All corporate proceedings incident to the authorization, form are true and validity of each of this Agreement, the Stock, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and the transactions contemplated hereby shall be reasonably satisfactory correct in all material respects to counsel for as though expressly made at and as of 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 mattersClosing Date.
(de) Fenwick & West You shall have received on the Closing Date a letter from KPMG Peat Marwick LLP, counsel for the Companyindependent public accountants (or other independent public accountants acceptable to you), shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated as of the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLPyou, counsel for the Underwriters, such counsel’s written opinion containing statements and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters, underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statements, the General Disclosure Package and Statement or the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the following: Company's securities, including the Offered Securities, by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the 1933 Act.
(ig) trading in securities generally on At the NASDAQ Global Market or trading in any securities of Closing Date, counsel for the Company on any exchange or in the over-the-counter market, Underwriters shall have been suspended or materially limitedfurnished with all such documents, or minimum or maximum prices or maximum range certificates and opinions as they may request for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any purpose of enabling them to pass upon the issuance and sale of the Offered Securities as herein contemplated and the other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services matters to be addressed in the United States, (iiiopinion referred to in Section 5(c) and in order to evidence the United States shall have become engaged in hostilities, or the subject accuracy and completeness of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment any of the Representativerepresentations, impracticable warranties or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate statements of the Company, the performance of any of the covenants of the Company, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company at or prior to the Closing Date in connection with the authorization, issuance and sale of the Offered Securities as herein contemplated shall be satisfactory in form and substance reasonably satisfactory to the Underwriters and to counsel for the Underwriters.
(p) On . If any of the conditions specified in this Section 5 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by you on notice to the Company at any time at or prior to the Closing Date, the Company shall have furnished to the Representative and such further certificates and documents as the Representative may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement termination shall be deemed without liability of any party to any other party, except as provided in Section 4. Notwithstanding any such termination, the provisions of Sections 6, 7 and 8 shall remain in effect. 13 The documents required to be delivered by this Section 5 shall be delivered on the Closing Date at the time and location specified in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the UnderwritersSchedule II.
Appears in 1 contract
Samples: Underwriting Agreement (Hussmann International Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the such Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become Statement is effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the CommissionCommission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations shall have been received, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Warrant Shares, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick Xxxxxxxxx & West LLPXxxxxxx LLP shall have furnished to the Representative such counsel’s written opinion, as counsel for to the Company, addressed to the Underwriters and dated such Closing Date, in form and substance reasonably satisfactory to the Representative and substantially as set forth on Exhibit II hereto.
(e) Xxxxxx X. Xxxxxx, Vice President, Patent & General Counsel of the Company, shall have furnished to the Representative such counsel’s written opinion opinion, as intellectual property and negative assurance statementGeneral Counsel to the Company, each addressed to the Underwriters and dated the such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentative and substantially as set forth on Exhibit III hereto.
(ef) Xxxx X. Xxxxxxx, Associate General Counsel of the Company, shall have furnished to the Representative such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated such Closing Date, in form and substance reasonably satisfactory to the Representative and substantially as set forth on Exhibit IV hereto
(g) The Company shall have furnished to the Representative a certificate, dated such Closing Date, of its Chairman and Chief Executive Officer and its Vice President, Regulatory Affairs and Quality Systems in form and substance reasonably satisfactory to the Representative and substantially as set forth on Exhibit V hereto.
(h) The Representative shall have received from Xxxxxxx Procter LLPMintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fi) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company and its Subsidiaries within the meaning of the Securities Act and the Rules and Regulations and rules and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, 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 StatementsStatement, the General Disclosure Package and the Prospectus.
(gj) On the effective date of any post-effective amendment to any Registration Statement and on the such Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (fi) of this Section 6.
(hk) The Company shall have furnished to the Representative a certificate, dated the such Closing Date, of its Chairman of the Board and Chief Executive Officer and its Chief Financial Officer Vice President, Patent & General Counsel stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements Statement and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the such Closing Date 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 therein, in light of the circumstances under which they were made, not misleading, and the General Disclosure Package, as of the Applicable Time and as of the such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration StatementsStatement, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to the best of their knowledgeknowledge after reasonable investigation, as of the such Closing Date, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of and its subsidiariesSubsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries Subsidiaries taken as a whole, except as set forth in the Prospectus; it being understood that the certifications provided by the Vice President, Patent & General Counsel pursuant to this Section 6(k) will exclude the financial statements and the notes thereto, the financial schedules and other financial data and information included or incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus.
(il) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company and nor any of its subsidiaries Subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or long-term debt of the Company or any of its Subsidiaries (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt business and repayments of the Company or any of its subsidiariesexisting indebtedness), or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholdersshareholders’ equity or results of operations of the Company or any of and its subsidiariesSubsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) l), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jm) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially could be reasonably expected to materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially could reasonably be expected to materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kn) 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 NASDAQ New York Stock Exchange, Nasdaq Global Market 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such), in the case of clauses (i), (ii), (iii) and (iv) above, so as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lo) The Company Exchange shall have filed a Notification: Listing approved the Firm Stock, any Optional Stock and the Warrant Shares for listing therein, subject only to official notice of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Marketissuance.
(mp) The Representative shall have received on and as of the 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 State of Delaware and existence as a foreign corporation in the State of WashingtonRepresentative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities governmental authorities of such jurisdictions.
(nq) The Representative shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons officers and entities directors of the Company listed in Exhibit B Schedule D to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pr) On or prior to the such Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Omeros Corp)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the each Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Knowledge of the Company’s knowledge, threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West LLP, counsel for the Company, Xxxxxx LLP shall have furnished to the Representative Representatives such counsel’s written opinion and negative assurance statementletter, each as counsel to the Company, addressed to the Underwriters and dated the as of such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(e) [•] shall have furnished to the Representatives such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Underwriters and dated as of such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(f) The Representative Representatives shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the as of such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fg) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Representatives (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(gh) On the effective date of any post-effective amendment to any Registration Statement and on the such Closing Date, the Representative Representatives shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Representatives concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(hi) The Company shall have furnished to the Representative Representatives a certificate, dated the such Closing Date, of its Chief Executive Officer and its Chief Financial Officer in their capacities as such, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement their respective effective dates and as of the such Closing Date Date, 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the such Closing Date, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiariesCompany, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a wholeCompany, except as set forth in the Prospectus.
(ij) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofPackage, (iy) the The Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (iiz) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiariesCompany, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiariesCompany, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (iy) or (iiz) of this paragraph (i) ), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jk) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kl) 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 NASDAQ New York Stock Exchange, Nasdaq Global Market or the NYSE MKT LLC 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lm) The Company Exchange shall have filed a Notification: Listing approved the Stock for listing therein, subject only to official notice of Additional Shares with the NASDAQ Global Market issuance and evidence of satisfactory distribution.
(n) The Representatives shall have received no objection thereto from the NASDAQ Global Marketwritten agreements, substantially in the form of Exhibit I hereto, of the officers and directors of the Company.
(mo) The Representative Representatives shall have received on and as of the such Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence its good standing as a foreign corporation entity in the State of WashingtonCalifornia, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the such Closing Date, the Company shall have furnished to the Representative Representatives such further certificates and documents as the Representative Representatives 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (CymaBay Therapeutics, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing each Delivery Date, of the representations and warranties of the Company and the Operating Partnership contained herein, to the accuracy of the statements performance by each of the Company made in any certificates pursuant to and the provisions hereof, to the performance by the Company Operating Partnership and of its obligations hereunder, and to each of the following additional terms and conditions:
(a) All the representations and warranties of the Company and the Operating Partnership contained in this Agreement and all written statements of officers of the Company and Operating Partnership made pursuant to this Agreement shall be true and correct on the First Delivery Date with the same force and effect as if made on and as of the First Delivery Date.
(b) The Registration Statements have Statement, including any Rule 462(b) Registration Statement, has become effective under the Securities Act, and no stop order suspending ; the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration StatementProspectus, if any, each Issuer Free Writing the Prospectus and any amendment or supplement thereto, as the Prospectus case may be, shall have been filed with, with the Commission pursuant to Rule 424(b) (in the case of the Issuer Free Writing Prospectus, to the extent required under Rule 433 of the Securities Act) within the applicable time period prescribed for such filing by, and in compliance with, by such Rule; if the Rules and Regulations and in accordance with Section 4(a), and the Company is required to file a Rule 462(b) Registration StatementStatement after the effectiveness of this Agreement, if any, such Rule 462(b) Registration Statement shall have become effective immediately upon its filing with been filed by 10:00 A.M., New York City time, on the Commissionbusiness day after the date of this Agreement; and FINRA shall have raised no objection to stop order suspending the fairness and reasonableness effectiveness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any post-effective amendment thereto and no order directed at any Incorporated Document or any amendment or supplement to the Registration Statement, Preliminary Prospectus, Prospectus or the Time of Sale Information shall have been issued, and no proceedings for that purpose shall have been instituted or threatened, or, to the knowledge of the Company, shall be contemplated by the Commission.
(c) Subsequent to the respective dates as of which information is given in the Registration Statement, the Preliminary Prospectus, the Prospectus and the Time of Sale Information, other than as set forth in or contemplated by the Registration Statement, the Prospectus and the Time of Sale Information (exclusive of any amendments or supplements thereto contains an untrue subsequent to the date of this Agreement) and prior to the First Delivery Date, there shall not have occurred (i) any event that would cause a Material Adverse Effect, or (ii) any event or development relating to or involving the Company or any of its subsidiaries, or any partner, officer, director or trustee of the Company or any of its subsidiaries, which makes any statement of a material fact made in the Prospectus untrue or which, in the opinion of the Company and its counsel for or the UnderwritersUnderwriters and their counsel, is material requires the making of any addition to or omits change in the Prospectus in order to state a material fact required by the Securities Act or any fact which, in the opinion of such counsel, is material and is required other law to be stated therein or is necessary in order to make the statements therein not misleading, if amending or that the General Disclosure Package, any Issuer Free Writing Prospectus or supplementing the Prospectus to reflect such event or any amendment or supplement thereto contains an untrue statement of fact whichdevelopment would, in your reasonable opinion, adversely affect the opinion of such counsel, is material or omits to state any fact which, in market for the 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 misleadingShares.
(cd) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the StockShares, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus Statement and the Prospectus Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(de) Fenwick Xxxxx & West LLP, counsel for the Company, Xxxxxxx LLP shall have furnished to the Representative such counsel’s Representatives its written opinion and negative assurance statementopinion, each as counsel to the Company, addressed to the Underwriters and dated the Closing such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives and counsel to the Underwriters, substantially as set forth on Exhibit B hereto. In rendering such opinion, such counsel may (i) state that its opinion is limited to matters governed by the Federal laws of the United States of America and the States of Delaware, Maryland and New York; (ii) in respect of matters of fact, upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that it believes that both the Underwriters and it are justified in relying upon such certificates. Such counsel shall also have furnished to the Representatives a written statement, addressed to the Underwriters and dated such Delivery Date, in form and substance satisfactory to the Representatives and counsel to the Underwriters, in substantially the form set forth in Exhibit C hereto.
(ef) The Representative Representatives shall have received from Xxxxxxx Procter Xxxxxxxx Chance US LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the Closing such Delivery Date, with respect to such the issuance and sale of the Shares, the Registration Statement, the Prospectus, the Time of Sale Information and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fg) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered accounting firm with respect to the Company public accountants within the meaning of the Securities Act and are in compliance with the Rules and Regulations and PCAOB applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating 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 Prospectus and the Time of Sale Information, as of a date not more than three business days prior to the date hereof), the conclusions and findings of such firm, of firm with respect to the type financial information and other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters, underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72.
(h) With respect to the financial statements and certain financial information contained or incorporated by reference letter of Ernst & Young LLP referred to in the Registration Statementspreceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “initial letter”), the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative Company shall have received furnished to the Representatives a letter (the “bring-down letter”) from Ernst & Young LLP of such accountants, addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent public accountants within the Closing Date confirmingmeaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package Prospectus and the Prospectus, as the case may beTime of Sale Information, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, firm with respect to the financial information and other matters covered by its the initial letter delivered to and (iii) confirming in all material respects the Representative concurrently with conclusions and findings set forth in the execution of this Agreement pursuant to paragraph (f) of this Section 6initial letter.
(hi) The Neither the Company nor any of its subsidiaries shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) sustained since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent latest audited financial statements included or incorporated by reference in the General Disclosure Package, Prospectus and the Time of Sale Information (exclusive of any material adverse change in the financial position amendment or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of supplement thereto after the date hereof, ) (iA) the Company and its subsidiaries shall not have sustained any loss or interference with its their 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, otherwise than as set forth in the General Disclosure Packageor (B) since such date, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, subsidiaries or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholdersshareholders’ equity or results of operations of the Company or any of and its subsidiaries, otherwise other than as set forth disclosed in the General Disclosure PackageRegistration Statement, the Prospectus and the Time of Sale Information, the effect of which, in any such case described in clause (iA) or (ii) of this paragraph (i) B), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of the Stock Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the General Disclosure PackageProspectus and the Time of Sale Information.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading of the Common Shares shall have been suspended by the Commission or the NYSE; (ii) trading in securities generally on the NASDAQ Global Market NYSE or trading in any securities of the Company on any exchange American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on the NYSE, shall have been suspended or materially limited, limited or the settlement of such trading generally shall have been materially disrupted or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (iiiii) a banking moratorium shall have been declared by Federal or any state authorities authority or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iiiiv) the United States shall have become engaged in new hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, States or there shall have been a declaration of a national emergency or war by the United States or there shall have occurred any other calamity or crisis as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus and the Time of Sale Information or (ivv) there shall have occurred such a material adverse change in general economic, political or financial conditions 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 judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale public offering or delivery of the Stock Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the General Disclosure Package Prospectus and the Time of Sale Information.
(k) The Company shall have furnished to the Representatives a certificate, dated such Delivery Date, of its chief executive officer and its chief financial officer stating that:
(i) The representations, warranties and agreements of the Company and the Operating Partnership in Section 1 are true and correct in all material respects, as of such Delivery Date; the Company has complied with all its agreements contained herein; and the conditions set forth in Sections 7(b) and (c) have been fulfilled;
(ii) They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) as of the Effective Date, the Registration Statement and Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (with respect to the Prospectus, in light of the circumstances under which they were made), and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus; and
(iii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(l) The Company NYSE shall have filed a Notification: Listing approved the Shares for listing, subject only to official notice of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Marketissuance.
(m) The Representative On the First Delivery Date, counsel for the Underwriters shall have received on been 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 Closing Date satisfactory Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the good standing representations or warranties, or the fulfillment of any of the Company in the State of Delaware and existence as a foreign corporation in the State of Washingtonconditions, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictionsherein contained.
(n) The Representative You shall have received been furnished with the written agreements, substantially agreements referred to in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this AgreementSection 5(m) hereof.
(o) The Company shall have furnished or caused to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have be furnished to the Representative you such further certificates and documents as the Representative may Representatives or counsel to the Underwriters shall have reasonably requestrequested. 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 are in form and substance reasonably satisfactory to counsel for the Underwriters. Any certificate or document signed by any officer of the Company or the Operating Partnership and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by the Company or the Operating Partnership to each Underwriter as to the statements made therein. The several obligations of the Underwriters to purchase Option Shares hereunder are subject to the satisfaction on and as of any Date of Delivery of the conditions set forth in this Section 7, except that, if any Date of Delivery is other than the First Delivery Date, the certificates, opinions and letters referred to in Sections 7(e) through 7(k) hereof shall be dated the Date of Delivery in question and the opinions called for by Sections 7(e) and (f) hereof shall be revised to reflect the sale of Option Shares.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties of the Company herein contained herein, to the accuracy or in certificates of the statements any officer of the Company made in or any certificates subsidiary delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and further conditions:
(a) The Registration Statements Statement, including any Rule 462(b) Registration Statement, shall have become effective under not later than 5:30 p.m., New York City time, on the Securities Actdate hereof, and on the date hereof and at the Closing Time and any Date of Delivery no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities 1933 Act shall have been or proceedings therefor initiated or, to the Company’s knowledge, or threatened by the Commission, Commission and all requests for additional information any request on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) for additional information shall have been complied with to the reasonable satisfaction of counsel to the Representative; Underwriters. A prospectus containing information relating to the Rule 462(b) Registration Statementdescription of the Securities, if any, each Issuer Free Writing Prospectus the specific method of distribution and the Prospectus similar matters shall have been filed with, with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(aRule 424(b)(1), (2), (3), (4) or (5), as applicable (or any required post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A), or, if the Company has elected to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet including the Rule 462(b) Registration Statement, if any, 434 Information shall have become effective immediately upon its filing been filed with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebyCommission in accordance with Rule 424(b)(7).
(b) None of At the Closing Time the Underwriters shall have discovered and disclosed received:
(1) The favorable opinion, dated as of the Closing Time, of , General Counsel to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to counsel for the Representative Underwriters, to the effect that:
(i) confirming that they are an independent registered accounting firm with respect to The Company has been duly incorporated and is validly existing as a corporation in good standing under the Company within the meaning laws of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings State of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, the representations and warranties of the Company in this Agreement are true and correct Indiana; 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 the Closing Date, and (iv) there has not been, subsequent to corporate power under the date laws of the most recent audited financial statements included or incorporated by reference State of Indiana and under its charter to own, lease and operate its properties and to conduct its business as described in the General Disclosure Package, any material adverse change in Registration Statement and the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly Prospectus or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting Company's Annual Report filed on Form 10-K for the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectusyear ended December 31,-------- .
(iii) Since The Securities delivered at the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure PackageClosing Time, and (ii) there shall not have been any change in the capital stock (all other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any outstanding securities of the Company on any exchange or have been duly authorized and validly issued, are fully paid and nonassessable and conform in all material respects to the description thereof contained in the over-the-counter marketProspectus; the Common Stock and the Securities are each registered under the 1934 Act, shall and the Securities [INCLUDE THE FOLLOWING LANGUAGE IF THE EQUITY SECURITIES TO BE OFFERED ARE CONVERTIBLE INTO OR REDEEMABLE FOR SHARES OF COMMON STOCK OF THE COMPANY -- and the Common Stock issuable upon conversion or redemption of the Securities] at the Closing Time have been suspended or materially limitedauthorized for listing on the NYSE, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, upon official notice of issuance.
(iii) The issuance of the United States shall have become engaged in hostilities, Securities is not subject to preemptive or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war other similar rights arising by the United States or law. [INCLUDE THE FOLLOWING PARAGRAPH IF THE EQUITY SECURITIES TO BE OFFERED ARE CONVERTIBLE INTO OR REDEEMABLE FOR SHARES OF COMMON STOCK OF THE COMPANY -- (iv) there shall have occurred such a material adverse change in general economic, political The shares of Common Stock issuable upon conversion or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment redemption of the RepresentativeSecurities have been duly authorized and validly reserved for issuance upon such conversion or redemption, impracticable and such shares, when issued and delivered upon such conversion or inadvisable to proceed with the sale or delivery of the Stock on the terms and redemption in the manner contemplated provided in the General Disclosure Package Amended Articles of Incorporation, will be validly issued, fully paid and nonassessable and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities issuance of such jurisdictionsshares upon such conversion or redemption will not be subject to preemptive or other similar rights arising by law.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.]
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the each Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have Statement has become effective under the Securities Act, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no unresolved objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration StatementsStatement, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick Xxxxxx, Xxxx & West LLP, counsel for the Company, Xxxxxxxx LLP shall have furnished to the Representative Representatives such counsel’s written opinion and negative assurance statementletter, each as counsel to the Company, addressed to the Underwriters and dated the as of such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(e) Xxxxxx LLP shall have furnished to the Representatives such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Underwriters and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(f) Xxxxx Xxxxx, shall have furnished to the Representatives such counsel’s written opinion, as Cayman Islands counsel to the Company’s subsidiary, Rocket Pharmaceuticals, Ltd., addressed to the Underwriters and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(g) The Representative Representatives shall have received from Xxxxxxx Procter LLPMintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the as of such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fh) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young each of EisnerAmper LLP and RSM US LLP a letter, addressed to the Underwriters, executed and dated such date, with each letter in form and substance satisfactory to the Representative Representatives (i) confirming that they are each is an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such each firm, 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 StatementsStatement, the General Disclosure Package and the Prospectus.
(gi) On the effective date of any post-effective amendment to any the Registration Statement and on the such Closing Date, the Representative Representatives shall have received a letter (the “bring-down letter”) from Ernst & Young each of EisnerAmper LLP and RSM US LLP and addressed to the Underwriters and dated the such Closing Date Date, with each letter confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such each firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Representatives concurrently with the execution of this Agreement pursuant to paragraph (fg) of this Section 6.
(hj) The Company shall have furnished to the Representative Representatives a certificate, dated the such Closing Date, of its Chief Executive Officer or President and its Chief Financial Officer or Principal Financial Officer stating in their respective capacities as officers of the Company on behalf of the Company and not in their individual capacities that (i) such officers have carefully examined no stop order suspending the effectiveness of the Registration StatementStatement (including, the General Disclosure Packagefor avoidance of doubt, any Permitted Free Writing Prospectus and the Prospectus andRule 462(b) Registration Statement), in their opinion, the Registration Statements and each or any post-effective amendment thereto, at shall be in effect and no proceedings for such purpose shall have been instituted or, to their knowledge, threatened by the Applicable TimeCommission, as of (ii) for the period from and including the date of this Agreement through and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the including such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that there has not been so set forth thereinoccurred any Material Adverse Effect, (iii) to their knowledge, after reasonable investigation, as of the such Closing Date, the representations and warranties of the Company in this Agreement that are qualified by materiality are true and correct and the representations and warranties of the Company not qualified by materiality are true and correct in all material respects, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change Material Adverse Effect in the financial position or results of operations of the Company or any of its subsidiariesCompany, or any change or development that, singularly or in the aggregate, would reasonably be expected to involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a wholeMaterial Adverse Effect, except as set forth in the General Disclosure Package and the Prospectus.
(ik) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofPackage, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure PackagePackage or the Prospectus, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ik) is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jl) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(km) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in any of the Company’s securities shall have been suspended or materially limited by the Commission or the Exchange, or trading in securities generally on the NASDAQ New York Stock Exchange, The Nasdaq Global Select Market, The Nasdaq Global Market, The Nasdaq Capital Market or the NYSE MKT LLC 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(ln) The Company shall have filed a Notification: Listing of Additional Shares shares with the NASDAQ The Nasdaq Global Market and shall have received no objection thereto from the NASDAQ The Nasdaq Global Market.
(mo) The Representative Representatives shall have received on and as of the 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 State of Delaware and existence as a foreign corporation in the State of WashingtonRepresentatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(np) The Representative Representatives shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons officers, directors and entities listed certain holders of the Company’s capital stock, as set forth in Exhibit B to this AgreementSchedule D hereto.
(oq) The Company shall have furnished to the Underwriters Representatives a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersUnderwriters and customary for the type of offering contemplated by this Agreement.
(pr) The Company shall have furnished to the Representatives, at the time of the execution of this Agreement, dated the date hereof, and as of each Closing date, dated such Closing Date, a certificate of its Chief Executive Officer and its controller, or its Chief Financial Officer or Principal Financial Officer, substantially in form and substance reasonably satisfactory to the Representatives (s) On or prior to the such Closing Date, the Company shall have furnished to the Representative Representatives such further certificates and documents as the Representative Representatives 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Rocket Pharmaceuticals, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the StockStock and Warrants, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Warrants, the Conversion Stock, the Warrant Stock, the Registration Statements, the General 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.
(d) Fenwick & West Xxxxxx LLP, corporate counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) Xxxxx & Xxxxxxx LLP, special intellectual property counsel for the Company, shall have furnished to the Representative such counsel’s written opinion, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(f) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fg) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young PricewaterhouseCoopers LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(gh) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young PricewaterhouseCoopers LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (fg) of this Section 6.
(hi) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to the best of their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiariesCompany, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a wholeCompany, except as set forth in the Prospectus.
(ij) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiariesCompany, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiariesCompany, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ij) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock and Warrants on the terms and in the manner contemplated in the General Disclosure Package.
(jk) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock and Warrants or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock and Warrants or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kl) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock and Warrants on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lm) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(mn) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of WashingtonCalifornia, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(no) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B Schedule IV to this Agreement.
(op) The Company shall have furnished to the Underwriters Representative a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pq) The Company shall have furnished to the Representative a Certificate of the Chief Financial Officer of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(r) Prior to Closing Date, the Company shall have filed with the Secretary of State of the State of Delaware the Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock, substantially in the form as attached to Exhibit B hereto.
(s) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectusof, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA the NASD shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick Cxxxxx Godward Kronish LLP shall have furnished to the Representatives such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date, substantially in the form set forth in Exhibit B.
(e) The Representatives shall have received from Hxxxx, Pxxxxx & West LLPMxXxxxxx, regulatory counsel for the Company, shall have furnished to the Representative such counsel’s written opinion opinion, addressed to the Underwriters and negative assurance statementdated the Closing Date, each substantially in the form set forth in Exhibit C.
(f) The Representatives shall have received from Txxxxx North & Western LLP, patent counsel for the Company, such counsel’s written opinion, addressed to the Underwriters and dated the Closing Date, in substantially in the form and substance reasonably satisfactory set forth in Exhibit D.
(g) Holme Rxxxxxx & Oxxx LLP shall have furnished to the Representative.Representatives such counsel’s written opinion, as Utah counsel for the Company and with respect to matters regarding Utah law, addressed to the Underwriters and dated the Closing Date, substantially in the form set forth in Exhibit E.
(eh) The Representative Representatives shall have received from Wxxxxx Xxxxxxx Procter LLPXxxxxxxx & Rxxxxx, P.C., counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fi) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Representatives (i) confirming that they are an independent registered accounting firm with respect to the Company and the Company Subsidiary within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(gj) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative Representatives shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Representatives concurrently with the execution of this Agreement pursuant to paragraph (fh) of this Section 6.
(hk) The Company shall have furnished to the Representative Representatives a certificate, dated the Closing Date, of its Chief Executive Officer Chairman of the Board or President and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement their respective effective dates, and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth thereinProspectus, (iii) to the best of their knowledgeknowledge after reasonable investigation, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiariesand the Company Subsidiary, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries the Company Subsidiary taken as a whole, except as set forth in the Prospectus.
(il) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofPackage, (i) neither the Company and its subsidiaries nor the Company Subsidiary shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiariesthe Company Subsidiary, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiariesand the Company Subsidiary, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) k), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(jm) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(kn) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company’s corporate credit rating or the rating accorded the Company’s debt securities 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 (other than an announcement with positive implications of a possible upgrading), the Company’s corporate credit rating or the rating of any of the Company’s debt securities.
(o) 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, NASDAQ Global Market 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lp) The Company Exchange shall have filed a Notification: Listing approved the Stock for listing therein, subject only to official notice of Additional Shares with the NASDAQ Global Market issuance and shall have received no objection thereto from the NASDAQ Global Marketevidence of satisfactory distribution.
(mq) The Representative Cxxxx shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company and the Company Subsidiary in the State their respective jurisdictions of Delaware organization and existence their good standing as a foreign corporation entities in the State of Washingtonsuch other jurisdictions as Cxxxx may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(nr) The Representative Cxxxx shall have received the written agreements, substantially in the form of Exhibit A hereto, from all officers, directors, shareholders, optionholders and warrantholders of the persons and entities listed in Exhibit B to this AgreementCompany.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(ps) On or prior to the Closing Date, the Company shall have furnished to the Representative Cxxxx such further certificates and documents as the Representative Cxxxx 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company Representing Parties contained herein, to the accuracy of the statements of the Company Representing Parties made in any certificates pursuant to the provisions hereof, to the performance by the Company Representing Parties of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under Prior to the Securities ActClosing Date, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, ; and all requests for additional information on the part any request of the Commission (to be included or incorporated by reference for inclusion of additional information in the Registration Statements Statement or the Prospectus or otherwise) otherwise shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus Representing Parties shall have been filed with, the Prospectus Supplement with the Commission within the applicable time period prescribed for such filing by, and in compliance with, pursuant to Rule 424(b) of the Rules and Regulations and in accordance with Section 4(a), and within the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebytime period prescribed by such rule.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the StockCertificates, the Pooling Agreement, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus Statement and the Prospectus Prospectus, and all other legal matters relating to such agreements and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company Representing Parties shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) The Pooling Agreement shall have been duly executed and delivered by the Depositor, the Seller, the Servicer and the Trustee and the Certificates shall have been duly executed and delivered by the Trustee on behalf of the Issuer and duly authenticated by the Trustee.
(d) Fenwick & West LLPThe Representative shall have received evidence satisfactory to it and its counsel that on or before the Closing Date, counsel for UCC-1 financing statements required to be filed on or prior to the CompanyClosing Date pursuant to the Pooling Agreement have been filed.
(e) [Steven Alan Bennett, shall Senior Vice President and General Counsel of xxx Bxxx], xxxxx have furnished to the Representative such counsel’s his written opinion and negative assurance statementopinion, each addressed to the Underwriters and dated the Closing Date, regarding the due organization and power and authority of the Seller, the due authorization, execution and delivery by the Seller of the Pooling Agreement, no conflicts or violations of its charter or by-laws, contracts or law and other related matters, in form and substance reasonably satisfactory to the RepresentativeRepresentative and its counsel.
(ef) special Delaware counsel to the Depositor, shall have furnished to the Representative their written opinion, as counsel to the Depositor, addressed to the Underwriters and dated the Closing Date, regarding (i) the due organization of the Depositor and (ii) other general Delaware law matters with respect to the Depositor, including, without limitation, the due authorization, execution and delivery of the Pooling Agreement by the Depositor, in each case, in form and substance reasonably satisfactory to the Representative and its counsel.
(g) special Delaware counsel to the Issuer, shall have furnished to the Representative their written opinion, as counsel to the Issuer, addressed to the Underwriters and dated the Closing Date, regarding (i) the due organization of the Issuer, and (ii) other general Delaware law matters with respect to the Issuer, including, without limitation, the due authorization and issuance of the Certificates, in each case, in form and substance reasonably satisfactory to the Representative and its counsel.
(h) Sidley Austin Brown & Wood LLP shall have furnished to the Representatixx xxxxx xxxttex xxinion, addressed to the Underwriters and dated the Closing Date, regarding (i) the enforceability of the Pooling Agreement, (ii) the validity of the security interests created thereby, (iii) the due authorization and issuance of the Certificates, (iv) no violations of law, (v) compliance with applicable federal securities laws, (vi) exemption of the Depositor, the Bank and the Issuer from registration as an investment company under the Investment Company Act of 1940, (vii) the conformity in all material respects of the Pooling Agreement to the description thereof contained in the Registration Statement and the Prospectus, (viii) negative assurances concerning the Prospectus and
(ix) the lack of qualification of the Pooling Agreement under the Trust Indenture Act, in each case in form and substance reasonably satisfactory to the Representative and its counsel.
(i) special Texas counsel to the Bank, shall have furnished to the Representative their written opinion, addressed to the Underwriters and dated the Closing Date, regarding the perfection and priority of the security interests created by the Pooling Agreement.
(j) Sidley Austin Brown & Wood LLP shall have furnished to the Representatixx xxxxx xxxttex xxinion, addressed to the Underwriters and dated the Closing Date, with respect to certain matters relating to the transfer of the Receivables to the Issuer, in form and substance reasonably satisfactory to the Representative and its counsel.
(k) Sidley Austin Brown & Wood LLP shall have furnished to the Representatixx xxxxx xxxttex xxinion, addressed to the Underwriters and dated the Closing Date, to the effect that (i) the Issuer will not be an association (or a publicly trade partnership) taxable as a corporation for federal income tax purposes and that the Issuer will be classified as a grantor trust under subpart E, part 1, subchapter J, chapter 1 of subtitle A of the Code, (ii) the holders of the Certificates will be treated as the owners of undivided interests in the interest and principal portions of the Issuer represented by the Certificates for federal income tax purposes and (iii) the statements set forth in the Prospectus under the heading "Certain Federal Income Tax Consequences", to the extent that they are statements of law are true and correct in all material respects, in form and substance reasonably satisfactory to the Representative and its counsel.
(l) The Representative shall have received from Xxxxxxx Procter LLP______________, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the Closing Date, with respect to such matters as the Underwriters Representative may reasonably require, and the Company Representing Parties shall have furnished to such counsel such documents as they reasonably request for enabling them to pass upon such matters.
(fm) At counsel to the time of the execution of this AgreementTrustee, shall have furnished to the Representative shall have received from Ernst & Young LLP a lettertheir written opinion, as counsel to the Trustee, addressed to the Underwriters, executed Underwriters and dated such datethe Closing Date, regarding the due organization of the Trustee, the due authorization, execution and delivery by the Trustee of the Pooling Agreement, no conflicts or violations of organizational documents, contracts or law and other related matters, in form and substance reasonably satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectusits counsel.
(gn) On The Representative shall have received a letter dated the effective date hereof (the "Procedures Letter") from a firm of independent nationally recognized certified public accountants acceptable to the Representative verifying the accuracy of such financial and statistical data contained in the Prospectus as the Representative shall deem advisable. In addition, if any post-effective amendment or supplement to any Registration Statement and on the Closing DateProspectus made after the date hereof contains financial or statistical data, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of confirming 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 General Disclosure Package Procedures Letter and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of providing additional comfort on such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6new data.
(ho) The Company Representative shall have furnished to the Representative received a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer any of the Chairman of the Board, the President, any Senior Vice President or the chief financial officer of the Depositor stating that (iA) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus representations and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as warranties of the date of Depositor contained in this Agreement and as of the Closing Date did not include any untrue statement of a material fact Pooling Agreement are true and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time correct on and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of (B) the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, the representations and warranties of the Company in this Agreement are true and correct and the Company Depositor has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Pooling Agreement at or prior to the Closing Date, (C) 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 best of his or her knowledge, are contemplated by the Commission, and (ivD) since ______, ____, there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any been no material adverse change in the financial position or results of operations of the Company Depositor or the Issuer or any of its subsidiarieschange, or any change or development that, singularly or in the aggregate, would involve a material adverse change or including a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets business or prospects of the Company and its subsidiaries taken as a whole, Depositor or the Issuer except as set forth in or contemplated by the Registration Statement and the Prospectus.
(ip) Since The Representative shall have received a certificate, dated the date Closing Date, of any of the latest audited financial statements included Chairman of the Board, the President, any Senior Vice President or the Chief Financial Officer of the Bank stating that (A) the representations and warranties of the Bank contained in this Agreement and the General Disclosure Package or incorporated by reference in the General Disclosure Package Pooling Agreement are true and correct on and as of the date hereofClosing Date, (iB) the Company Bank has complied with all agreements and satisfied all conditions on its subsidiaries shall not have sustained any loss part to be performed or interference with its business from fire, explosion, flood satisfied hereunder and under the Pooling Agreement at or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in prior to the General Disclosure PackageClosing Date, and (iiC) since ______, ____, there shall not have has been any no material adverse change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course financial position or results of business) or long-term debt operations of the Company Bank or any of its subsidiaries, the Issuer or any change, or any development involving including a prospective change, in or affecting the businesscondition (financial or otherwise), general affairs, management, financial position, stockholders’ equity or results of operations operations, business or prospects of the Company Bank or any of its subsidiaries, otherwise than the Issuer except as set forth in or contemplated by the General Disclosure Package, Registration Statement and the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure PackageProspectus.
(jq) No action The Representative shall have been taken received a letter from ____ stating that the Class A Certificates have received a rating of "___" from _____ and no law, statute, rule, regulation or order shall a letter from ____ stating that the Class A Certificates have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale received a rating of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries"___" from _____.
(kr) The Representative shall have received a letter from ____ stating that the Class B Certificates have received a rating of "___" from _____ and a letter from ____ stating that the Class B Certificates have received a rating of "___" from _____.
(s) 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 NASDAQ Global Market New York Stock Exchange, the American Stock Exchange or trading in any securities of the Company on any exchange or in the over-the-counter market, market shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any either of such exchange exchanges or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, jurisdiction or (ii) a general moratorium on commercial banking moratorium activities shall have been declared by Federal or state New York State authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) an outbreak or escalation of hostilities or a declaration by the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 any other substantial national or financial conditions (international calamity or the effect of international conditions on the financial markets in the United States shall be such) emergency as to make it, in the reasonable judgment of a majority in interest of the Representativeseveral Underwriters, impracticable or inadvisable to proceed with the sale public offering or the delivery of the Stock Certificates on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the such Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the StockShares, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick & West The Underwriters shall have received on such Closing Date from Xxxxxx Godward Kronish LLP, outside counsel for the Company, shall have furnished to (i) an opinion dated such Closing Date in the Representative such counsel’s written opinion form attached as Exhibit B-1 hereto and (ii) a negative assurance statement, each addressed to letter dated such Closing Date in the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representativeattached as Exhibit B-2 hereto.
(e) The Representative Underwriters shall have received on such Closing Date an opinion of Xxxxx & Xxxxx P.C. dated such Closing Date and in the form attached as Exhibit C hereto.
(f) The Underwriters shall have received on such Closing Date an opinion of Xxxxx & Xxxxxxx LLP dated such Closing Date and in the form attached as Exhibit D hereto.
(g) The Representatives shall have received from Xxxxxxx Procter Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(fh) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Representatives (i) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(gi) At the time of the execution of this Agreement, the Representatives shall have received from PricewaterhouseCoopers LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representatives (i) confirming that they were an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(j) On the effective date of any post-effective amendment to any Registration Statement and on the such Closing Date, the Representative Representatives shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative Representatives concurrently with the execution of this Agreement pursuant to paragraph (fh) of this Section 6.
(k) On the effective date of any post-effective amendment to any Registration Statement and on such Closing Date, the Representatives shall have received a letter (the “bring-down letter”) from PricewaterhouseCoopers LLP addressed to the Underwriters and dated such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representatives concurrently with the execution of this Agreement pursuant to paragraph (h) of this Section 6.
(l) The Company shall have furnished to the Representative Representatives a certificate, dated the such Closing Date, of its Chairman of the Board, Chief Executive Officer and its or Chief Financial Officer and its General Counsel stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as date of first use of the date of this Agreement Prospectus and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth thereinProspectus, (iii) to the best of their knowledgeknowledge after reasonable investigation, as of the such Closing Date, the representations and warranties of the Company in this Agreement are true and correct in all material respects 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of and its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(im) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiariesCompany, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiariesCompany, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) m), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock Shares on the terms and in the manner contemplated in the General Disclosure Package.
(jn) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock Shares or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock Shares or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(ko) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company’s corporate credit rating 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 (other than an announcement with positive implications of a possible upgrading), the Company’s corporate credit rating.
(p) 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 NASDAQ New York Stock Exchange, Nasdaq Global Market 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale or delivery of the Stock Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(lq) The Company shall have filed a Notification: Listing submitted an additional share listing application to list the Shares on the Nasdaq Global Market, and the Nasdaq shall not have disapproved of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from listing of such shares, subject to notice of issuance, on the NASDAQ Nasdaq Global Market.
(mr) The Representative Representatives shall have received on and as of the such Closing Date satisfactory evidence of the good standing of the Company company and its subsidiaries in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as the State of Delaware and existence as a foreign corporation in the State of WashingtonRepresentatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(ns) The Representative Representatives shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons officers and entities directors of the Company listed in Exhibit B Schedule D to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(pt) On or prior to the such Closing Date, the Company shall have furnished to the Representative Representatives such further certificates and documents as the Representative Representatives 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Affymax Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties on the part of the Company contained herein, to herein and the accuracy of the statements of the Company Company's officers made in any certificates certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its obligations hereunder, part to be performed and observed and to each of the following additional terms and conditionsconditions precedent:
(a) The Registration Statements Statement shall have become effective under the Securities Act1933 Act and at the Closing Time, and no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall be instituted or to the knowledge of the Company or the Underwriters, threatened or contemplated by the Commission; no stop order suspending the sale of the Notes in any jurisdiction designated by the Underwriters pursuant to Section 8A under the Securities Act 4(f) shall have been initiated orissued and no proceedings for that purpose shall have been instituted, or to the Company’s knowledgeknowledge of the Company or the Underwriters, threatened by or shall be contemplated; any request of the Commission, and all requests Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement, the General Disclosure Package, any preliminary prospectus or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of counsel to the Representative; Underwriters. The Prospectus shall have been filed with the Commission pursuant to Rule 462(b424(b) Registration Statement, if any, and each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, with the Commission to the extent required by Rule 164 or Rule 433, as applicable, within the applicable time period prescribed for such filing by, by the rules and in compliance with, regulations under the Rules and Regulations 1933 Act and in accordance with Section 4(a)4(g) hereof, and all requests of the Rule 462(b) Registration Statement, if any, Representative for additional information shall have become effective immediately upon its filing been complied with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness reasonable satisfaction of the terms of this Agreement or the transactions contemplated hereby.Representative;
(b) None of the The Underwriters shall have discovered and disclosed to received an opinion from internal counsel of the Company on or prior to Company, dated as of the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, Time and in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and the transactions contemplated hereby shall be reasonably substance satisfactory in all material respects to counsel for the Underwriters, and to 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.effect set forth in Exhibit C.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(ec) The Representative Underwriters shall have received an opinion from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed dated as of the Closing Time and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the ProspectusRepresentatives.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Occidental Petroleum Corp /De/)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the such Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under the Securities Act, and no stop order suspending the effectiveness of any Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, Commission and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus Prospectus, if any, and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the such Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, Agreement the Stock, the Registration Statements, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick Xxxxxxxx Xxxxxxxx & West Co. and Xxxxxx Aharoni Xxxxx and Xxxxxxxx & Worcester LLP, counsel for counsels to the Company, shall each have furnished to the Representative such counsel’s written opinion and negative assurance statementopinion, each as counsel to the Company, addressed to the Underwriters and dated the as of such Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Pillsbury Xxxxxxxx Xxxx Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementor opinions, dated the such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Xxxx Xxxxx Xxxxxx & Kasierer, a member of Ernst & Young LLP Global, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the such Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Xxxx Xxxxx Xxxxxx & Kasierer, a member of Ernst & Young LLP Global, addressed to the Underwriters and dated the such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the such Closing Date, of its Chairman of the Board or Chief Executive Officer and its Chief Financial Officer Officer, each in his or her capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, Time and as of the date of this Agreement and as of the such Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the such Closing Date, any Permitted Free Writing Prospectus as of its date and as of the such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth thereinProspectus, (iii) to their knowledge, as of the such Closing Date, 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 the such Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of and its subsidiaries, taken as a whole, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company and nor any of its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock as a result of option and or warrant exercises and stock repurchases in the ordinary course of business) or exercises, long-term debt debt, net current assets or stockholders’ equity, or any decrease in total revenues or total or per share net income of the Company or any of its subsidiaries, or any change, or any development involving a prospective changedevelopment, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of and its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) ), is, in the reasonable judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany.
(k) 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 NASDAQ New York Stock Exchange, Nasdaq Global Market, Nasdaq Capital Market or NYSE MKT 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 suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in a significant escalation of hostilities, or the subject of an a significant act of terrorism, or there shall have been an outbreak of or significant 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the reasonable judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company Exchange shall have filed a Notification: Listing approved the Stock for listing therein, subject only to official notice of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Marketissuance.
(m) The Representative Xxxx shall have received on and as of the such Closing Date satisfactory evidence of the good standing (or the equivalent) of each of the Company Significant Subsidiaries in the State their respective jurisdictions of Delaware organization and existence their good standing (if such concept is recognized) as a foreign corporation entities in the State of Washingtonsuch other jurisdictions as Xxxx may reasonably request ample time in advance, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative Xxxx shall have received the written agreements, substantially in the form of Exhibit A I hereto, of the persons officers and entities directors of the Company listed in Exhibit B Schedule C to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the such Closing Date, the Company shall have furnished to the Representative Xxxx such further certificates and documents as the Representative Xxxx 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time date hereof and on the Closing Date (as if made at the Closing Date), of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Registration Statements Prospectus shall have become effective under been filed with the Securities ActCommission in a timely fashion in accordance with Section 4(a) hereof; all filings (including, without limitation, the Final Term Sheet) required by Rule 424(b) or Rule 433 of the Rules and Regulations shall have been made within the time periods prescribed by such Rules, and no such filings will have been made without the consent of the Representatives (such consent not to be unreasonably withheld or delayed); no stop order suspending the effectiveness of any the Registration Statement or any part thereofamendment or supplement thereto, preventing or suspending the use of any Base Preliminary Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification of the Notes for offering or sale in any part thereof jurisdiction shall have been issued and issued; no proceedings for that purpose the issuance of any such order shall have been initiated or threatened pursuant to Section 8A under of the Securities Act Act; no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto shall have been initiated or, to received by the Company’s knowledge, threatened by ; and any request of the Commission, and all requests Commission for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements Statement or the Prospectus or otherwise) shall have been disclosed to the Representatives and complied with to the Representatives’ reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebysatisfaction.
(b) None The Representatives shall have received a letter, dated the date of this Agreement, of Ernst & Young LLP (“E&Y”) or KPMG LLP (“KPMG”), as applicable, addressed to the Underwriters, confirming that they are independent public accountants within the meaning of the Underwriters Securities Act and the applicable published rules and regulations thereunder (“Rules and Regulations”) and to the effect that:
(i) in their opinion the financial statements and schedules examined by them and included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 100, Interim Financial Information, on the unaudited financial statements included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus;
(iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules and Regulations or 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 balance sheet read by such accountants, and at a subsequent specified date not more than three business days prior to the date of this Agreement, there was any decrease in stockholders’ equity or change in the capital stock or any increase in short-term indebtedness or long-term debt of the Company and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net current assets or total assets, as compared with amounts shown on the latest balance sheet included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus; or
(C) for the period from the closing date of the latest income statement included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year and with the period of corresponding length ended the date of the latest income statement included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus, in consolidated net sales, net operating income, the total or per share amounts of net earnings or in the ratio of earnings to fixed charges, or any increases or decreases, as the case may be, in other items specified by the Representatives;
(D) except in all cases set forth in clauses (B) and (C) above for changes, increases or decreases which the most recent Preliminary Prospectus or the Prospectus discloses have occurred or may occur or which are described in such letter;
(iv) the pro forma financial statements, together with related notes, included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus are consistent with the historical statements, except for the pro forma adjustments specified therein, and give effect to assumptions made on a reasonable basis and present fairly the historical and proposed transactions contemplated hereby and by the most recent Preliminary Prospectus or the Prospectus, and nothing came to their attention that caused them to believe that the pro forma financial information included or incorporated by reference in the most recent Preliminary Prospectus or the Prospectus does not comply as to form in all material respects with the accounting requirements of the Securities Act and the related published Rules and Regulations or has not been properly compiled and that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of those statements; and
(v) they have compared specified dollar amounts (or percentages derived from such dollar amounts), numerical data and other financial information contained in the most recent Preliminary Prospectus or the Prospectus (in each case to the extent that such dollar amounts, percentages, numerical data and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages, numerical data and other financial information to be in agreement with such results except as otherwise specified in such letter.
(c) The Representatives shall have discovered and disclosed received a letter, addressed to the Company on Underwriters, dated the Closing Date, of E&Y or KPMG, as applicable, which meets the requirements of subsection (b) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each purposes of this Agreement, the Stock, the Registration Statements, the General 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 matterssubsection.
(d) Fenwick Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries, taken as a whole, which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Notes; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on the United States, outbreak or escalation of major hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Notes.
(e) The Representatives shall have received from Xxxxx Xxxx & West LLPXxxxxxxx, counsel for the Company, shall have furnished to the Representative such counsel’s written an opinion and negative assurance statement10b-5 letter, each addressed to the Underwriters and Underwriters, dated the Closing DateDate substantially in the form of Exhibits B and C hereto, respectively.
(f) The Representatives shall have received from Xxxxx X. Xxxxxxxxx, General Counsel and Secretary of the Company, an opinion, addressed to the Underwriters, dated the Closing Date substantially in the form of Exhibit D hereto.
(g) The Representatives shall have received from Xxxxx & XxXxxxx LLP, counsel to the Underwriters, such opinion or opinions, addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing DateRepresentatives, with respect to such the Notes, Indenture, Registration Statement, Prospectus and Disclosure Package and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fh) At the time of the execution of this Agreement, the Representative The Representatives shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, 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 Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer the President or any Vice President and its Chief Financial Officer stating the principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, the representations and warranties of the Company in this Agreement are true and correct and correct, (ii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for any such purpose have been initiated or threatened and (iviii) there has not been, subsequent to the date dates of the most recent audited financial statements included or incorporated by reference in the General Disclosure Packagemost recent Preliminary Prospectus and the Prospectus, any there has been no material adverse change change, nor any development or event involving a prospective material adverse change, in the condition (financial position or other), business, properties or results of operations of the Company or any of and its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as other than those set forth in or contemplated by the Prospectus.
(i) Since most recent Preliminary Prospectus and the date of the latest audited financial statements included in the General Disclosure Package Prospectus or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) certificate. The Company shall have filed a Notification: Listing of Additional Shares will furnish the Underwriters with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities such conformed copies of such jurisdictions.
(n) The Representative shall have received the written agreementsopinions, substantially in the form of Exhibit A heretocertificates, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates letters and documents as the Representative may Underwriters reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere The Representatives may in this Agreement shall be deemed to be in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for obligations of the UnderwritersUnderwriters hereunder.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, and the closing of the sale of the Stock, hereunder are subject to the accuracy, when made and as of the Applicable Time and on the Closing each Delivery Date, of the representations and warranties of the Company and the Selling Shareholders contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholders of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements Prospectus shall have become effective under been timely filed with the Securities Act, and Commission in accordance with Section 6(a)(i). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding or examination for that such purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the knowledge of the Company’s knowledge, threatened by the Commission, ; and all requests for additional information on the part any request of the Commission (to be included or incorporated by reference for inclusion of additional information in the Registration Statements Statement or the Prospectus or otherwise) otherwise shall have been complied with with. If the Company has elected to rely upon Rule 462(b) under the reasonable satisfaction of the Representative; Securities Act, the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, Statement shall have become effective immediately upon its filing with by 10:00 P.M., Washington, D.C. time, on the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms date of this Agreement or the transactions contemplated herebyAgreement.
(b) None of the Underwriters No Underwriter shall have discovered and disclosed to the Company on or prior to the Closing such Delivery Date that any the Registration Statement Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto thereto, contains an untrue statement of a fact which, in the reasonable opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state any a fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the StockCustody Agreements, the Powers of Attorney, the Shares, the Registration StatementsStatement, the General Disclosure Package, each Prospectus and any Issuer Free Writing Prospectus Prospectus, and the Prospectus 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 and the Selling Shareholders shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fenwick Xxxxxxx Xxxx & West LLP, counsel for the Company, Xxxxxxxxx LLP shall have furnished to the Representative such counsel’s Representatives its written opinion and negative assurance statementletter, each as counsel to the Company, addressed to the Underwriters and dated the Closing such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(e) Xxxxx Xxxxx Bermuda Limited shall have furnished to the Representatives its written opinion, as Bermuda counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives.
(f) The Representative counsel for each of the Selling Shareholders shall have furnished to the Representatives their written opinion, as counsel to the Selling Shareholders for whom they are acting as counsel, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives.
(g) The Representatives shall have received from Xxxxxxx Procter Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statementletter, dated the Closing such Delivery Date, with respect to such the issuance and sale of the Shares, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fh) At the time of the execution of this Agreement, the Representative Representatives shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered accounting firm with respect to the Company public accountants within the meaning of the Securities Act and are in compliance with the Rules and Regulations and PCAOB applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating 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, of firm with respect to the type financial information and other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters, underwriters in connection with registered public offerings.
(i) With respect to the financial statements and certain financial information contained or incorporated by reference letter of Xxxxx & Xxxxx referred to in the Registration Statementspreceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “initial letter”), the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date, the Representative Company shall have received furnished to the Representatives a letter (the “bring-down letter”) from Ernst & Young LLP of such accountants, addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent public accountants within the Closing Date confirmingmeaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, firm with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with initial letter, and (iii) confirming in all material respects the execution of this Agreement pursuant to paragraph (f) of this Section 6conclusions and findings set forth in the initial letter.
(hj) The Company shall have furnished to the Representative Representatives a certificate, dated the Closing such Delivery Date, of its Chief Executive Officer and its Chief Financial Officer stating that as to such matters as the Representatives may reasonably request, including, without limitation, a statement:
(i) That the representations, warranties and agreements of the Company in Section 1 are true and correct on and as of such officers Delivery Date, and the Company has complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Delivery Date;
(ii) That no stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have carefully been instituted or, to the knowledge of such officers, threatened;
(iii) That they have examined the Registration Statement, the General Prospectus and the Pricing Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, (A) (1) the Registration Statements Statement, as of the Effective Date, (2) the Prospectus, as of its date and each amendment theretoon the applicable Delivery Date, at and (3) the Pricing Disclosure Package, as of the Applicable Time, as of the date of this Agreement and as of the Closing Date did not include 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, and (except in the General Disclosure Package, as case of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements thereinRegistration Statement, in the light of the circumstances in under which they were made, ) not misleading, and (iiB) since the effective date of the Initial Registration StatementEffective Date, no event has occurred which that should have been set forth in a supplement or amendment to the Registration StatementsStatement, the General Disclosure Package Prospectus or the any Issuer Free Writing Prospectus that has not been so set forth therein, forth; and
(iiiiv) To the effect of Section 9(l) (provided that no representation with respect to their knowledge, as the judgment of the Closing Representatives need be made) and Section 9(m).
(k) Each Selling Shareholder (or one or more attorneys-in-fact on behalf of the Selling Shareholders) shall have furnished to the Representatives on such Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, the representations Selling Shareholder (or one or more attorneys-in-fact) stating that the representations, warranties and warranties agreements of the Company in this Agreement Selling Shareholder contained herein are true and correct on and as of such Delivery Date and that the Company Selling Shareholder has complied with all its agreements contained herein and has satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing such Delivery Date, and .
(ivl) there has not been, subsequent to the date of Except as described in the most recent audited financial statements included or incorporated by reference in the General Disclosure PackagePreliminary Prospectus, any material adverse change in the financial position or results of operations of (i) neither the Company or nor any of its subsidiariessubsidiaries shall have sustained, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereofmost recent Preliminary Prospectus, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and or (ii) since such date there shall not have been any change in the capital stock (or other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or equity interests, as applicable, short-term debt, long-term debt or investments of the Company or any of its subsidiaries, subsidiaries or any change, or any development involving a prospective change, in or affecting the businesscondition (financial or otherwise), general affairsresults of operations, shareholders’ equity, properties, management, financial position, stockholders’ equity business or results of operations prospects of the Company or any of and its subsidiaries, otherwise than subsidiaries taken as set forth in the General Disclosure Packagea whole, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) ), is, individually or in the aggregate, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of the Stock Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the General Disclosure PackageProspectus.
(jm) No action Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have been taken occurred in the rating accorded the Company’s securities, financial strength or ability to pay claims by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the Exchange Act), and (ii) no law, statute, rule, regulation or order such organization shall have been enactedpublicly announced that it has under surveillance or review, adopted or issued by with possible negative implications, its rating of any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiariesCompany’s securities.
(kn) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) (A) trading in securities generally on any securities exchange that has registered with the NASDAQ Commission under Section 6 of the Exchange Act (including the New York Stock Exchange, The Nasdaq Global Select Market, The Nasdaq Global Market or The Nasdaq Capital Market), or (B) trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, limited or the settlement of such trading generally shall have been materially disrupted or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by Federal federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesauthorities, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, States or there shall have been a declaration of a national emergency or war by the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions 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) or any other calamity or crisis, either within or outside the United States, in each case as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the sale public offering or delivery of the Stock Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The New York Stock Exchange shall have approved the Shares for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(p) The Lock-Up Agreements between the Representatives and each of the officers, directors and shareholders of the Company set forth on Schedule III hereof, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(q) On the date hereof and on each Delivery Date, the Company shall have furnished delivered to the Underwriters Representatives a Secretary’s Certificate certificate of the CompanyChief Financial Officer of the Company as to certain financial information contained in the most recent Preliminary Prospectus and in the Prospectus, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentatives.
(pr) On or prior to the Closing each Delivery Date, the Company shall have furnished to the Representative Underwriters such further certificates and documents as the Representative Representatives may reasonably request.
(s) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, or other arrangements of the transactions, contemplated hereby. 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 are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Hamilton Insurance Group, Ltd.)
Conditions of Underwriters’ Obligations. The respective several obligations of the several Underwriters hereunder, to purchase and pay for the Firm Shares on the Closing Date and the closing of the sale of the StockOption 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, when made and as of the Applicable Time and on Time, the Closing Date or any Option Closing Date, of the representations and warranties of the Company Transaction Entities contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, and to the performance by the Company Transaction Entities of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statements have become effective under Subsequent to the Securities Actexecution and delivery of this Agreement and prior to the Closing Date or any Option Closing Date, and no as applicable:
(i) No stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued under the Securities Act, and no proceedings for that purpose or pursuant to Section 8A under of the Securities Act shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information any request on the part of the Commission for additional information (to be included or incorporated by reference in the Registration Statements or the Prospectus Statement or otherwise) shall have been disclosed to the Representative and complied with to the reasonable satisfaction of counsel to the Representative; Underwriters;
(ii) Since the Rule 462(b) respective dates as of which information is given in the Registration Statement, if anythe Time of Sale Prospectus and Prospectus, there has not been any material adverse change or any development involving a prospective material adverse change in or affecting the business, management, Properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole, whether or not arising in the ordinary course of business; and
(iii) The Prospectus and each Issuer Free Writing Prospectus and that the Prospectus Company is required to file pursuant to Rules 424, 430A, 430B, 430C or 433 of the Securities Act, as applicable, shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Securities Act Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated herebyRegulations.
(b) None of the Underwriters The Representative shall have discovered and disclosed to the Company on or prior to received (i) a certificate, dated as of the Closing Date that any Registration Statement or any amendment 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 supplement thereto contains an untrue any Option Closing Date, as the case may be, of the general partner of the Operating Partnership, in each case, to the effect set forth in Section 7(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, 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 7(b) may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Representative shall have received on the Closing Date or any Option Closing Date, as applicable, the opinion and Rule 10b-5 statement of a fact whichLedgewood, P.C., outside counsel for the Transaction Entities, dated the Closing Date or any Option Closing Date, as applicable, addressed to the Representative, in form and substance reasonably acceptable to the Representative.
(d) The Representative 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, dated the Closing Date or any Option Closing Date, as applicable, addressed to the Representative, in form and substance reasonably acceptable to the Representative.
(e) The Representative shall have received on the Closing Date or any Option Closing Date, as applicable, an opinion of Xxxxx Xxxxxx LLP, Maryland counsel for the Company, dated the Closing Date or any Option Closing Date, as applicable, addressed to the Representative (and stating that it may be relied upon by counsel to the Underwriters), in form and substance reasonably acceptable to the Representative.
(f) The Representative shall have received on the Closing Date or any Option Closing Date, as applicable, an opinion and Rule 10b-5 statement of Xxxxx Lovells US L.L.P., counsel for the Underwriters, is material or omits to state any fact which, in dated the 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 General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus Closing Date or any amendment or supplement thereto contains an untrue statement of fact whichOption Closing Date, in the opinion of such counselas applicable, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing DateRepresentative, in form and substance reasonably satisfactory to the Representative.
(eg) The Representative shall have received from Xxxxxxx Procter LLPreceived, counsel for on the Underwritersdate hereof, such counsel’s written opinion and negative assurance statement, a letter dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such datedate hereof, in form and substance satisfactory to the Representative (i) confirming that they are an Representative, from KPMG LLP, independent registered accounting firm with respect to the Company within the meaning of the Securities Act public accountants, containing statements and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, information of the type ordinarily included in accountants’ “comfort letters” to underwriters, underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration StatementsStatement, the General Disclosure Package Time of Sale Prospectus and the Prospectus.
(gh) On the effective date of Closing Date, and, if applicable, any post-effective amendment to any Registration Statement and on the Option Closing Date, the Representative shall have received from KPMG LLP a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and , dated the Closing Date confirming, as of the date of Closing Date, and, if applicable, any Option Closing Date, to the bring-down letter (or, with respect to matters involving changes or developments since effect that they reaffirm the respective dates as of which specified financial information is given statements made in the General Disclosure Package and letter furnished pursuant to subsection (g) of this Section 7, except that the Prospectus, as the case may be, as of specified date referred to shall be a date not more than three (3) business days prior to the date Closing Date or the applicable Option Closing Date.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, executed by the officers, directors and stockholders of the bring-down letter)Company listed on Schedule III hereto, the conclusions relating to sales and findings certain other dispositions of such firmshares of Common Stock or certain other securities, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with on or before the execution of this Agreement pursuant to paragraph (f) of this Section 6date hereof, shall be in full force and effect on the Closing Date.
(hj) The Common Stock shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(k) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of the Closing Date 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, as of the Closing Date, 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 the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(p) On or prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriters. If any of the conditions hereinabove provided for in this Section 7 shall not have been fulfilled when and as required by this Agreement, the obligations of the Underwriters hereunder may be terminated by the Representative by notifying the Company of such termination in writing at or prior to the Closing Date or any Option Closing Date, as the case 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 hereunder, and the closing of the sale of the Stock, to purchase Securities pursuant to any Terms Agreement are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, accuracy of the representations and warranties on the part of the Company contained hereinherein contained, to the accuracy of the statements of the Company Company's officers made in any certificates certificate furnished pursuant to the provisions hereof, to the performance by the Company of all of its covenants and other obligations hereunder, hereunder and to each of the following additional terms and further conditions:
(a) The Registration Statements have become effective under At the Securities Act, and applicable Closing Time (i) no stop order suspending the effectiveness of any the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof 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 for that purpose or pursuant to Section 8A under the Securities 1933 Act or 1934 Act therefor shall have been initiated or, to the Company’s knowledge, or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that any Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the 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 General 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 opinion of such counsel, is material or omits to state any fact which, in the 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.
(c) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Stock, the Registration Statements, the General 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.
(d) Fenwick & West LLP, counsel for the Company, shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, each addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the Underwriters, such counsel’s written opinion and negative assurance statement, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwritersor, with respect to the financial statements and certain financial information contained or incorporated filing of any Form 8-A, by reference any national securities exchange, (ii) the rating assigned by any nationally recognized securities rating agency indicated in the Registration Statements, the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment applicable Terms Agreement to any Registration Statement and on debt securities or other obligations of the Closing Date, the Representative shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Underwriters and dated the Closing Date confirming, Company as of the date of the bring-down letter (or, with respect to matters involving changes or developments applicable Terms Agreement shall not have been lowered since the respective dates as 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 specified financial information is given in the General Disclosure Package 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) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently together with the execution of this Agreement pursuant to paragraph (f) of this Section 6.
(h) The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing applicable Prospectus and the Prospectus and, in their opinion, the Registration Statements and each amendment theretoSupplement, at the Applicable Time, as time it was required to be delivered to a purchaser of the date of this Agreement and as of the Closing Date did not include any Securities, contained an 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 not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were madeexisting at such time, not misleading.
(b) At the applicable Closing Time you shall have received:
(1) The favorable opinion, (ii) since the effective date of the Initial Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statements, the General Disclosure Package or the Prospectus that has not been so set forth therein, (iii) to their knowledge, dated as of the applicable Closing DateTime, 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 the Closing DateXxxxxx X. Xxxxx, and (iv) there has not beenEsq., subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any of its subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) the Company and its subsidiaries shall not have sustained 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, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than stock option and warrant exercises and stock repurchases in the ordinary course of business) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company or any of its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i) is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
(j) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any of its subsidiaries.
(k) 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 NASDAQ Global Market or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or 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 (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market and shall have received no objection thereto from the NASDAQ Global Market.
(m) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the State of Delaware and existence as a foreign corporation in the State of Washington, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) The Representative shall have received the written agreements, substantially in the form of Exhibit A heretoSenior Vice President/Legal, of the persons Company, or Xxxxxxxx X. Xxxxxxxxxx, Esq., Vice President and entities listed in Exhibit B to this Agreement.
(o) The Company shall have furnished to the Underwriters a Secretary’s Certificate General Counsel of the Company, in form and substance reasonably 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" (or other comparable caption which identifies a particular series of Debt Securities), 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 is effective under the 1933 Act, and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(x) At the time the Registration Statement became effective, the Registration Statement (other 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 legal or governmental proceedings pending or threatened which are required to be 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 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 descriptions thereof or references thereto are correct, and, except for certain minor matters which, either individually or in the aggregate, will not or do not have a material adverse effect on the Company or its business, no default exists in the due performance or observance of any 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.
(xiii) No consent, approval, authorization, or order of any court or governmental authority or agency is required in connection with the sale of the Securities, except such as may be required under the 1933 Act, the 1939 Act, the 1933 Act Regulations or state securities laws; and, to the best of such counsel's knowledge and information, the execution and delivery of this Agreement, the applicable Terms Agreement and the Indenture and the consummation of the transactions contemplated herein and therein will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or 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 law, administrative regulation or administrative or court decree known to such counsel to be applicable to the Company of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company, except that counsel need not express an opinion as to any state securities laws or regulations; nor will such action result in any violation of the provisions of the charter or by- laws of the Company.
(xiv) Each document filed pursuant to the 1934 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 LLP, counsel for the Underwriters.
, delivered pursuant to subsection (pb)(2) On or prior hereof and (B) as to matters of fact, to the Closing Dateextent deemed proper, on certificates of responsible officers of the Company shall have furnished to the Representative such further certificates and documents as the Representative 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 are in form and substance reasonably satisfactory to counsel for the Underwriterspublic officials.
Appears in 1 contract
