Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions: (a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or 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; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement. (b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) Xxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3. (e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4. (f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings. (h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter. (i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that: (i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date; (ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and (iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth. (j) The Underwriters shall have received an executed copy of the Paying Agency Agreement. (k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes. (l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear. (m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. (n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating). (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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 (Mohawk Industries Inc), Underwriting Agreement (Mohawk Industries Inc), Underwriting Agreement (Mohawk Industries Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 . The Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified . If the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of any objection to the use of the form of the Registration Statementthis Agreement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the reasonable opinion of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, is material or omits to state a fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleadingmisleading in light of the circumstances under which such statements were made.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Xxxxxx, Xxxx & Bird Xxxxxxxx LLP shall have furnished to the Representative Representatives its written opinion and its 10b-5 negative assurance letter, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Representatives.
(e) The Representatives shall have received from Xxxxx X. Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished internal counsel to the Representative Company, his written opinion, at the request of the Company opinion and the Parent Guarantornegative assurance statement, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4Representatives.
(f) The Representative Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG Ernst & Young LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG Ernst & Young LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each At the time of execution of this Agreement, the Representatives shall have received from Netherland, Xxxxxx and Associates, Inc. an initial letter (the “initial NSAI letter”), in form and substance reasonably satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof and a subsequent letter dated as of the Delivery Date, which such letter shall cover the period from any initial NSAI letter to the Delivery Date, stating the conclusions and findings of such firm with respect to information about the oil and gas reserves of the Company and the Parent Guarantor as is customarily included in reserves engineers’ “confirmation letters” to underwriters in connection with registered public offerings.
(j) The Company shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial OfficerOfficer as to such matters as the Representatives may reasonably request, in the case of the Parent Guarantorincluding, stating without limitation, a statement that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined Since the respective dates as of which information is given in the Registration Statement, the Prospectus Pricing Disclosure Package and the Pricing Disclosure PackageProspectus (exclusive of any amendment or supplement thereto), andthere has been no material adverse change or any development that would reasonably be expected to result in a prospective material adverse change in the financial condition, in their opinionearnings, (A) (1) the Registration Statement, as business or operations of the Effective Date, Company and its subsidiaries (2taken as a whole) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred from that should have been set forth or contemplated in a supplement or amendment to the Registration Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any amendment or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreementsupplement thereto).
(k) Application Parent shall have been made furnished to list the Notes Representatives a certificate, dated such Delivery Date, of an executive officer of the Parent, stating: the representations, warranties and agreements of Parent in Section 2 are true and correct on and as of such Delivery Date, and Parent has complied with all its agreements contained herein and satisfied all the NYSE for trading conditions on such exchange and, in connection therewith, the Company shall have caused its part to be prepared and submitted performed or satisfied hereunder at or prior to the NYSE a listing application with respect to the Notessuch Delivery Date.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, Significant Subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its 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 decree, or (ii) since such date there shall not have been incurred any change material liability or obligation, direct or contingent, other than liabilities and obligations that were incurred in the capital stock or long-term debt ordinary course of the Parent Guarantor or business, which would be reasonably likely to result in any of its subsidiaries, including the Company, or any changeMaterial Adverse Effect, or any development involving a prospective change, material adverse change in or affecting the condition (financial or otherwise)condition, results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries (taken as a whole) from that set forth in the Pricing Disclosure Package or Prospectus, the effect of which, in any such case described in clause (i) or (ii), which is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(nm) Since Subsequent to the date hereof, there execution and delivery of this Agreement (i) no downgrading shall not have occurred any downgrading with respect to any in the rating accorded the Company’s debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” (as such that term is defined in Section 3(a)(62by the Commission for purposes of Rule 436(g)(2) of under the Exchange Act or any public announcement that any Securities Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any of the Company’s debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)securities.
(on) 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 NYSE The New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market, The NASDAQ Capital Market, or The American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), in the case of clauses (i) through (iv), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(o) The New York Stock Exchange shall have approved the Stock for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(p) The Lock-Up Agreements between the Representatives and the officers and directors of the Company set forth on Schedule II, 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 or prior to each Delivery Date, the Company shall have furnished to the Underwriters such further certificates and documents as the 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 3 contracts
Samples: Underwriting Agreement (WPX Energy, Inc.), Underwriting Agreement (WPX Energy, Inc.), Underwriting Agreement (WPX Energy, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i5(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no . No stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified . If the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of any objection to this Agreement. The Exchange Act Registration Statement shall have been filed and shall have become effective under the use of the form of the Registration StatementExchange Act.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx White & Xxxxxxxx Case LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesUnits, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Ellenoff Xxxxxxxx & Bird Schole LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative Representatives its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4Representatives.
(fe) The Representative Representatives shall have received from Xxxxx Xxxx White & Xxxxxxxx Case LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gf) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG LLP WithumSmith+Xxxxx, PC a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hg) With respect to the letter of KPMG LLP WithumSmith+Xxxxx, PC referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ih) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial OfficerOfficer as to such matters as the Representatives may reasonably request, in the case of the Parent Guarantorincluding, stating thatwithout limitation, a statement:
(i) The That the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No That 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 personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and;
(iii) They That they have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or Date and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, Statement or the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.; and
(jiv) The Underwriters shall have received an executed copy To the effect of the Paying Agency Agreement.
Section 7(i) (k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application provided that no representation with respect to the Notesjudgment of the Representatives need be made).
(li) The Securities (i) the Company shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall not have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its 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 decree, or (ii) since such date there shall not have been any change in the capital stock or stock, long-term debt debt, total assets or total current liabilities of the Parent Guarantor or any of its subsidiaries, including the Company, Company or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), 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 public offering or the delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(oj) Subsequent to the execution and delivery of this Agreement, 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 NYSE Commission under Section 6 of the Exchange Act (including the New York Stock Exchange, The Nasdaq Global Select Market, The Nasdaq Global Market or in the over-the-counter marketThe Nasdaq Capital Market), or (B) trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such)) or any other calamity or crisis either within or outside the United States, as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(k) Nasdaq shall have approved the Units for listing subject only to official notice of issuance and evidence of satisfactory distribution.
(l) The Company shall have furnished to the Representatives at the time of purchase executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Warrant Purchase Agreement, the Registration Rights Agreement, the Administrative Services Agreement and the Letter Agreement.
(m) 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.
(n) On or prior to each Delivery Date, the Company shall have furnished to the Underwriters such further certificates and documents as the 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 2 contracts
Samples: Underwriting Agreement (SCP & CO Healthcare Acquisition Co), Underwriting Agreement (SCP & CO Healthcare Acquisition Co)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder are subject to the accuracy, when made and on each of the Delivery DateClosing Dates, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each accuracy of the statements of the Company and made in any certificates pursuant to the Parent Guarantor provisions hereof, to the performance by the Company of its their obligations hereunder, and to each of the following additional terms and conditions:
(a) No stop order suspending the effectiveness of either the Registration Statements shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission, and any request for additional information on the part of the Commission (to be included in the Registration Statements or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representatives. The Rule 462(b) Registration Statement, if any, and the Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i4(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or 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; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Delivery Closing Date that the any Registration Statement, the Prospectus or the Pricing Disclosure Package, Statement or any amendment or supplement thereto, thereto contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state a 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 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 SecuritiesStock, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its Representatives such counsel’s written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives and their counsel.
(i) Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP shall have furnished to the Representatives such counsel’s written opinion, substantially as intellectual property counsel to the Company, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the forms attached hereto Representatives and their counsel.
(ii) Xxxxxx Xxxxxxx LLP shall have furnished to the Representatives such counsel’s written opinion, as Exhibit A-4intellectual property counsel to the Company, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel.
(f) The Representative Company shall have furnished to the Representatives a certificate, dated the Closing Date, of its Vice President, Regulatory Affairs stating that:
(i) The Company is not in breach or violation of, or in default under, the Federal Food, Drug and Cosmetic Act or the regulations promulgated thereunder or any comparable foreign law or regulation relating to the regulation of pharmaceutical products (the “Food & Drug Laws”) or rule or any decree, judgment or order applicable to the Company relating to Food & Drug Laws, except where such breach, violation or default would not, individually or in the aggregate, have a Material Adverse Effect.
(ii) The Company has all licenses, certificates, authorizations, permits, consents and approvals (collectively “Consents”) and has made all necessary declarations and filings required under any Food & Drug Laws relating to the regulation of pharmaceutical products, including without limitation all such Consents required by the FDA, all of such Consents are valid and in full force and effect; except where such failure would not, individually or in the aggregate have a Material Adverse Effect; all such Consents are free and clear of any restrictions or conditions that are in addition to, or materially different from, those that may be applicable to similarly situated companies; and the Company is not in violation of, or in default under, nor has the Company received notification of any proceedings relating to revocation or modification of any such Consent or any Food & Drug Law or any decree, order or judgment applicable to the Company relating thereto and the Company has no reason to believe that any such Consent will not be renewed.
(iii) The Company is in compliance with all applicable Food & Drug Laws governing its business; except where such failure would not, individually or in the aggregate have a Material Adverse Effect; all preclinical and clinical studies undertaken to support approval of products for commercialization have been conducted, to the knowledge of the undersigned, in compliance with all applicable federal, state or foreign laws, rules, orders or regulations, including current Good Laboratory and Good Clinical Practices in all material respects, no filing or submission to the FDA or any comparable foreign regulatory body that is intended to be the basis for any approval contains, to the knowledge of the undersigned, any material omission or material misstatement of fact or other false information.
(iv) The Prospectus does not contain any untrue statement of a material fact related to FDA matters or omit to state a material fact relating to FDA matters necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and the General Disclosure Package and the Bona Fide Electronic Road Show, as of the Applicable Time, did not contain any untrue statement of a material fact related to FDA matters or omit to state any material fact related to FDA matters required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLPMintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related such matters as the Representative Underwriters may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gh) At the time of the execution of this Agreement, the Representative Representatives shall have received from KPMG PricewaterhouseCoopers LLP a letter, addressed to the Underwriters and dated such date, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof Representatives (i) confirming that they are an independent registered public accountants accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and are in compliance with the applicable requirements relating to Rules and Regulations and the qualification of accountants under Rule 2-01 of Regulation S-X rules of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, PCAOB and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), stating the conclusions and findings of such firm with respect to the financial statements and certain financial information regarding contained or incorporated by reference in the Company General Disclosure Package and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offeringsStatutory Prospectus.
(hi) With respect to On the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”)Closing Date, the Parent Guarantor Representatives shall have furnished to the Representative received a letter (the “bring-down KPMG letter”) of such accountants, from PricewaterhouseCoopers LLP addressed to the Underwriters and dated the Delivery Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) statingconfirming, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, Prospectus as of a date not more than three business days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by its letter delivered to the initial KPMG letter and (iii) confirming in all material respects Representatives concurrently with the conclusions and findings set forth in the initial KPMG letterexecution of this Agreement pursuant to Section 6(h).
(ij) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the Delivery Closing Date, of a director, in the case of the Company, its President and the Chief Executive Officer and the Chief Financial Officerits Vice President, in the case of the Parent Guarantor, Finance and Administration stating that:
that (i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They officers have carefully examined the Registration StatementStatements, the Prospectus General Disclosure Package and the Pricing Disclosure Package, Prospectus and, in their opinion, (A) (1) the Registration Statement, Statements as of the Effective Datetheir respective effective dates, (2) the Prospectus, as of its date each such effective date, and on the Delivery Date, or (3) the Pricing General Disclosure Package, as of the Applicable Time, did not and do not contain include any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (Bii) since the Effective Date, effective date of the Initial Registration Statement no event has occurred that which should have been set forth in a supplement or amendment to the Registration StatementStatements, the Prospectus General Disclosure Package or the Prospectus, (iii) to the best of their knowledge 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) subsequent to the date of the most recent financial statements included in the Prospectus, there has been no material adverse change in the financial position or results of operation of the Company, or any Issuer Free Writing Prospectus that has not been so set forth.
change, or any development including a prospective change, in or affecting the condition (j) The Underwriters shall have received an executed copy financial or otherwise), results of operations, business or prospects of the Paying Agency AgreementCompany, except as set forth in the Prospectus.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since Since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, General Disclosure Package (i) the Company 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 decree, otherwise than as set forth or contemplated in the General Disclosure Package and the Prospectus and (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, Company or any change, or any development involving a prospective change, in or affecting the condition (business, general affairs, management, financial or otherwise), results of operationsposition, stockholders’ equity, properties, management, business equity or prospects results of the Parent Guarantor and its subsidiaries, including operations of the Company, taken otherwise than as a wholeset forth or contemplated in the General Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering sale or the delivery of the Securities being delivered on the Delivery Date Stock on the terms and in the manner contemplated in the Prospectus.
(nl) Since the date hereofNo action shall have been taken and no statute, there rule, regulation or order shall not have occurred been enacted, adopted or issued by any downgrading with respect to any debt securities governmental agency or body which would, as of the Parent Guarantor Closing Date, prevent the issuance or any sale of its subsidiaries, including the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any “nationally recognized statistical rating organization” federal or state court of competent jurisdiction shall have been issued as such term is defined in Section 3(a)(62) of the Exchange Act Closing Date which would prevent the issuance or any public announcement that any such organization has under surveillance sale of the Stock or review its rating materially and adversely affect or potentially materially and adversely affect the business or operations of any debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)the Company.
(om) 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 NYSE New York Stock Exchange, Nasdaq or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited minimum or the settlement of such trading generally shall have been materially disrupted maximum prices or minimum maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal Federal or New York state authorities or European Union authoritiesa material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an escalation in hostilities involving a member state of the European Union or the United States States, or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof conditions (or the effect of international conditions on the financial markets in the European Union or United States shall be such), ) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering sale or delivery of the Securities being delivered on the Delivery Date Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(n) Nasdaq shall have approved the Stock for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(o) Cowen shall have received the written agreements, substantially in the form of Exhibit I hereto, of the officers, directors and shareholders of the Company listed in Schedule D to 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 2 contracts
Samples: Underwriting Agreement (Achillion Pharmaceuticals Inc), Underwriting Agreement (Achillion Pharmaceuticals Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made on the date hereof and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Xxxxxxxx Parties contained herein, to the performance by each the Xxxxxxxx Parties of the Company and the Parent Guarantor of its their obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Partnership shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, 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 any request of the Commission for inclusion of additional information in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company Partnership of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company Partnership on or prior to the such Delivery Date that the Registration Statement, any Preliminary Prospectus, 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 Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, is material or omits to state a fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleadingmisleading (in the case of any Preliminary Prospectus, the Prospectus or the Pricing Disclosure Package, in light of the circumstances under which such statements were made).
(c) All corporate corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesUnits, the Registration Statement, any Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor Xxxxxxxx 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) Xxxxxx Xxxxxx, Xxxx & Bird Xxxxxxxx LLP shall have furnished to the Representative its Representatives their written opinion and its 10b-5 negative assurance letter, as U.S. counsel to the Company and the Parent GuarantorXxxxxxxx Parties, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Representatives.
(e) Xxxxxxx Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, LLP shall have furnished to the Representative his Representatives their written opinion, at as counsel to the request of the Company and the Parent GuarantorXxxxxxxx Parties, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially with respect to the matters set forth in the form attached hereto as Exhibit A-3B to this Agreement.
(ef) Xxxxxx & Xxxxxxxxx X.X. The Representatives shall have furnished to the Representative its written opinionreceived from Xxxxx X. Xxxxxx, as Luxembourg internal counsel to the CompanyPartnership, his written opinion and negative assurance statement, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4Representatives.
(fg) The Representative Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx LLPXxxxxxx L.L.P., counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the most recent Preliminary Prospectus, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor Xxxxxxxx Parties shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gh) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG each of Ernst & Young LLP and Deloitte & Touche LLP a letterletter or letters, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hi) With respect to the letter or letters of KPMG Ernst & Young LLP and Deloitte & Touche LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Partnership shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ij) Each of On each Delivery Date, the Company and the Parent Guarantor General Partner shall have furnished to the Representative Representatives a certificatecertificate of the General Partner, signed by an executive officer of the General Partner, dated the such Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, Xxxxxxxx Parties contained in Section 1 of this Agreement are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has Xxxxxxxx Parties have complied with all its of their agreements contained herein and satisfied all the conditions on its their part to be performed or satisfied hereunder at or prior to the such Delivery Date;
(ii) No the Prospectus has been timely filed with the Commission in accordance with Section 5(a)(i) of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficer, threatenedthreatened by the Commission; all requests of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise has been complied with; and the Commission has not notified the Company or the Parent Guarantor, as applicable, Partnership of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined since the respective dates as of which information is given in the Registration Statement, the Prospectus Pricing Disclosure Package and the Pricing Disclosure PackageProspectus (exclusive of any amendment or supplement thereto), andthere has been no material adverse change or any development that would reasonably be expected to result in a prospective material adverse change in the financial condition, in their opinionearnings, (A) (1) the Registration Statement, as business or operations of the Effective DateGeneral Partner, the Partnership and its subsidiaries (2taken as a whole) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred from that should have been set forth in a supplement or amendment to contemplated in the Registration Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any amendment or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.supplement thereto);
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since Since the date of the latest audited most recent financial statements included or incorporated by reference in the most recent Preliminary Prospectus and the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving that would reasonably be expected to result in a prospective change, in or affecting the condition (financial or otherwise)condition, results of operations, stockholders’ equity, properties, managementearnings, business or prospects operations of the Parent Guarantor and its subsidiaries, including the Company, Partnership Entities (taken as a whole) from that set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), which is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(nl) Since Subsequent to the date hereof, there execution and delivery of this Agreement (i) no downgrading shall not have occurred any downgrading with respect to any in the rating accorded the Partnership’s debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” (as such that term is defined in Section 3(a)(62by the Commission for purposes of Rule 436(g)(2) of the Exchange Act or any public announcement that any Rules and Regulations), and (ii) no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any of the Partnership’s debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)securities.
(om) 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 NYSE, NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange Alternext US or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Partnership on any exchange or in the over-the-counter market shall have been suspended or limited or the settlement of such trading shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (iii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iiiiv) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (ivv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), in the case of clauses (iv) and (v), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the ProspectusProspectus (exclusive of any amendment or supplement thereto).
(n) The NYSE shall have approved the Units for listing, subject only to official notice of issuance.
(o) The Lock-Up Agreements among the Representatives and the persons and entities set forth on Schedule 2, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(p) The Xxxxxxxx Parties shall have furnished the Representatives such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, letters, documents, 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 (Williams Partners L.P.), Underwriting Agreement (Williams Partners L.P.)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Partnership Parties contained herein, to the performance by each the Partnership Parties of the Company and the Parent Guarantor of its their obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Partnership shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company Partnership Parties on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesUnits, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor Partnership 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) Xxxxxx & Bird LLP Xxxxxx L.L.P. shall have furnished to the Representative Representatives its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorPartnership, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibits A-1 and A-2. R. Xxxxx XxxxxxExhibit B.
(e) Xxxxxx Faneuil, Vice President—Business Strategy and General Counsel of the Parent GuarantorGeneral Partner, shall have furnished to the Representative Representatives his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.C.
(f) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG Ernst & Young LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG Ernst & Young LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Partnership shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three business days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor The Partnership Parties shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case signed on behalf of the Company, and Partnership by the Chief Executive Officer and the Chief Financial Officer, in the case Officer of the Parent Guarantor, General Partner stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, Partnership Parties in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has Partnership Parties have complied with all its their agreements contained herein and satisfied all the conditions on its their part to be performed or satisfied hereunder at or prior to the such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the latest Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the latest Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.;
(ji) The Underwriters shall have received an executed copy none of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, Partnership Entities shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock Units or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, Partnership Entities or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholderspartners or shareholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, Partnership Entities taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ok) 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 NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor Partnership on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(l) The New York Stock Exchange shall have approved the Units for listing, subject only to official notice of issuance.
(m) The Lock-Up Agreements between the Representatives and the officers, directors and unitholders of the Partnership Parties set forth on Schedule 3, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date. 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 Partners Lp), Underwriting Agreement (Global Partners Lp)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are to purchase Certificates pursuant to any Terms Agreement shall be subject to the accuracy, when made and on the Delivery Date, accuracy of the representations and warranties on the part of the Company and herein contained, to the Parent Guarantor contained hereinaccuracy of the statements of the Company's officers made pursuant hereto, to the performance by each of the Company and the Parent Guarantor of all of its obligations hereunder, hereunder and to each of the following additional terms and conditionsconditions precedent:
(a) The Prospectus shall have been timely filed with At the Commission in accordance with Section 5(a)(i); all filings applicable Closing Time (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(ii) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination proceedings for such that purpose shall have been initiated or threatened by the Commission; Commission and the Prospectus Supplement shall have been filed or transmitted for filing by means reasonably calculated to result in filing with the Commission not later than the time required by Rule 424(b) under the 1933 Act, (ii) the Certificates shall have received the rating or ratings specified in the applicable Terms Agreement, and (iii) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, together with the applicable Prospectus Supplement at the time it was required to be delivered to a purchaser of the Certificates, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading. No challenge by the Commission shall have been made to the accuracy or adequacy of the Registration Statement and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise the Prospectus Supplement shall have been complied with; with and the Commission Company shall not have notified filed with the Company of Commission any objection amendment or supplement to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure PackageProspectus Supplement without prior written notice to the Underwriters.
(b) At the applicable Closing Time you shall have received:
1) The opinion, or any amendment or supplement theretodated as of the applicable Closing Time, contains an untrue statement of a fact whichXxxxx, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLPXxxxx, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to such of you as may be named in the Representativeapplicable Terms Agreement, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and effect that:
(ii) stating, The Company is validly existing as a corporation in good standing under the laws of the date hereof State of Delaware.
(oriii) This Agreement and the applicable Terms Agreement have been duly authorized, executed and delivered by the Company, and each is a valid and binding obligation of the Company.
(iv) The applicable Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Company, and is a legal, valid and binding obligation of the Company enforceable against the Company in accordance with respect its terms, except that (A) such enforceability thereof may be subject to matters involving changes bankruptcy, insolvency, reorganization, moratorium or developments since other similar laws now or hereafter in effect relating to creditors' rights generally and (B) the respective dates as remedy of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus, as specific performance and injunctive and other forms of a date not more than three days prior equitable relief may be subject to equitable defenses and to the date hereof)discretion of the court before which any proceeding therefor may be brought.
(v) The execution and delivery by the Company of this Agreement, the conclusions applicable Terms Agreement and findings applicable Pooling and Servicing Agreement and the signing of such firm with respect to the financial information regarding Registration Statement by the Company are within the corporate power of the Company and have been duly authorized by all necessary corporate action on the Parent Guarantor part of the Company; and neither the issue and sale of the Certificates nor the consummation of the transactions contemplated herein or therein nor the fulfillment of the terms hereof or thereof will, 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 lien, charge or encumbrance upon any property or assets of the Company pursuant to, any contract, indenture, mortgage, or other matters ordinarily covered instrument to which the Company is a party or by accountants’ “comfort letters” which it may be bound of which such counsel is aware, other than the lien or liens created by the applicable Pooling and Servicing Agreement, nor will such action result in any violation of the provisions of the certificate of incorporation or by-laws of the Company or, any statute, rule or regulation to which the Company is subject or by which it is bound or any writ, injunction or decree of any court, governmental authority or regulatory body to which it is subject or by which it is bound of which such counsel is aware.
(vi) The Certificates have been duly authorized and, when executed and authenticated as specified in the related Pooling and Servicing Agreement and delivered and paid for, will be validly issued, fully paid, nonassessable and entitled to the benefits of the related Pooling and Servicing Agreement.
(vii) Assuming strict compliance by the Underwriters with the provisions of this Agreement, no filing or registration with or notice to or consent, approval, authorization, order or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Certificates or the consummation by the Company of the transactions contemplated by this Agreement, the applicable Pooling and Servicing Agreement or the applicable Terms Agreement, except the registration under the 1933 Act of the Certificates, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with registered public offeringsthe purchase and distribution of the Certificates by the Underwriters.
(hviii) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, Other than as of the date of the bring-down KPMG letter (or, with respect to matters involving changes may be set forth or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given contemplated in the Prospectus, as there is no action, suit or proceeding of a date not more than three days prior which such counsel is aware before or by any court or governmental agency or body, domestic or foreign, now pending or, to such counsel's knowledge, threatened against the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to Company which might result in any material adverse change in the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificatecondition, dated the Delivery Dateearnings, of a director, in the case affairs or business of the Company, or which might materially and adversely affect the Chief Executive Officer properties or assets thereof or might materially and adversely affect the Chief Financial Officerperformance by the Company of its obligations under, or the validity or enforceability of, the Certificates, this Agreement or the Pooling and Servicing Agreement, or which is required to be disclosed in the case of the Parent Guarantor, stating that:Registration Statement.
(iix) The representationsRegistration Statement is effective under the 1933 Act and, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued; issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(x) The applicable Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended.
(xi) The Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information included therein, as to which no proceedings opinion need be rendered) as of their respective effective or examination for that purpose have been instituted orissue dates, complied as to form in all material respects with the requirements of the 1933 Act and the Regulations thereunder.
(xii) (A) The statements in the Prospectus under the headings "ERISA Considerations" and "Federal Income Tax Consequences" and the statements in the applicable Prospectus Supplement under the headings "Federal Income Tax Consequences" and "ERISA Considerations", to the knowledge extent that they describe matters of United States federal income tax law or ERISA or legal conclusions with respect thereto, have been prepared or reviewed by such personscounsel and are accurate in all material respects and (B) the statements in the Prospectus under the heading "Legal Aspects of the Mortgage Loans," to the extent they constitute matters of United States federal law or legal conclusions with respect thereto, threatened; while not purporting to discuss all possible consequences of investment in the Certificates, are accurate in all material respects with respect to those consequences or matters discussed therein.
(xiii) The statements in the Prospectus and the Commission has applicable Prospectus Supplement under the caption "Description of the Certificates", insofar as they purport to summarize certain terms of the Certificates and the applicable Pooling and Servicing Agreement, constitute a fair summary of the provisions purported to be summarized.
(xiv) The Trust Funds created by the applicable Pooling and Servicing Agreement is not, and will not notified as a result of the offer and sale of the Certificates as contemplated in the Prospectus and in this Agreement become, required to be registered as an "investment company" under the 1940 Act.
(xv) The Classes of Certificates so designated in the Prospectus Supplement will be "mortgage related securities", as defined in ss.3(a)(41) of the 1934 Act, so long as the Certificates are rated in one of the two highest grades by at least one nationally recognized statistical rating organization.
(xvi) Assuming (a) ongoing compliance with all of the provisions of the Pooling and Servicing Agreement and (b) the filing of elections, in accordance with the Pooling and Servicing Agreement, to be treated as "real estate mortgage investment conduits" ("REMICs") pursuant to Section 860D of the Internal Revenue Code of 1986, as amended (the "Code") for Federal income tax purposes, REMIC I and REMIC II of the Trust Fund will qualify as REMICs as of the Closing Date and will continue to qualify as REMICs for so long as there is compliance with amendments after the date hereof to any applicable provisions of the Code and applicable Treasury Regulations.
(xvii) Assuming that REMIC I and REMIC II of the Trust Fund are treated as REMICs for Federal income tax purposes, neither of them nor the Trust Fund will be subject as an entity to any tax imposed on income, franchise or capital stock by the laws of Illinois. Such counsel shall deliver to you such additional opinions addressing the transfer by the Company or the Parent Guarantor, as applicable, of any objection to the use Trustee of its right, title and interest in and to the Mortgage Loans and other property included in the Trust Fund at the Closing Time as may be required by each Rating Agency rating the Certificates. Such counsel shall state that it has participated in conferences with officers and other representatives of the form Company, your counsel, representatives of the independent accountants for the Company and you at which the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume responsibility for, the factual accuracy, completeness or any post-effective amendment thereto; and
fairness of the statements contained in the Registration Statement or the Prospectus (iiiexcept as stated in paragraphs (xi) They have carefully examined and (xii) above) and has made no independent check or verification thereof for the purpose of rendering its opinion, on the basis of the foregoing, nothing has come to their attention that leads such counsel to believe that either the Registration Statement, at the Prospectus time it became effective and at the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable applicable Closing Time, did not and do not contain any contained an untrue statement of a material fact and did not and do not omit or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein (except in the case of the Registration Statementtherein, in the light of the circumstances under which they were made) , not misleading, or that the Prospectus contained or contains as of the date thereof and (B) since at the Effective Dateapplicable Closing Time any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that such counsel need express no event has occurred that should have been set forth view with respect to the financial statements, schedules and other financial and statistical data included in a supplement or amendment to incorporated by reference into the Registration Statement, the Prospectus or any Issuer Free Writing the Prospectus Supplement. Such counsel may state that has not been so set forth.
(j) The Underwriters shall have received an executed copy their opinions relate only to laws of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewithState of New York, the Company shall have caused Federal laws of the United States and the General Corporation Law of the State of Delaware. In rendering such opinions, such counsel may rely, as to be prepared and submitted matters of fact, to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance extent deemed proper and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantorstated therein, nor any on certificates of its subsidiaries, including responsible officers of the Company, shall have sustained, since the date of the latest audited financial statements included Trustee or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectusofficials.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 (Abn Amro Mortgage Corp Series 2001-1), Underwriting Agreement (Abn Amro Mortgage Corp Series 2001-4)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters Underwriter hereunder are subject to the accuracy, when made and again on the Delivery DateDate (as if made again on and as of such date), of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i5(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus part thereof shall have been issued and no proceeding or examination for such that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, Statement or 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 Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the UnderwritersUnderwriter, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the UnderwritersUnderwriter, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP Akerman Senterfitt shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative Underwriter its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters Underwriter and dated the Delivery Date, in substantially the form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4B.
(e) Xxxxx Xxxx & Xxxxxxxx shall have furnished to the Underwriter its written opinion, as FCC counsel to the Company, addressed to the Underwriter and dated the Delivery Date, in a form satisfactory to the Underwriter.
(f) The Representative Underwriter shall have received from Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the UnderwritersUnderwriter, such opinion and 10b-5 letteror opinions, dated the Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Underwriter may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Underwriter shall have received from KPMG Ernst & Young LLP a letter, in form and substance satisfactory to the RepresentativeUnderwriter, addressed to the Underwriters Underwriter and dated the date hereof (i) confirming that they are it is an independent public accountants within accountant under the meaning guidelines of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardAICPA, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG Ernst & Young LLP referred to in Section 7(g) above, and delivered to the Representative Underwriter concurrently with the execution of this Agreement (the “initial KPMG letterInitial Letter”), the Parent Guarantor Company shall have furnished to the Representative Underwriter a letter (as used in this paragraph, the “bringBring-down KPMG letterDown Letter”) of such accountants, addressed to the Underwriters Underwriter and dated as of the Delivery Closing Date (i) confirming that they are it is an independent public accountants within accountant under the meaning guidelines of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardAICPA, (ii) stating, as of the date of the bringBring-down KPMG letter Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bringBring-down KPMG letterDown Letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter Initial Letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letterInitial Letter.
(i) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Underwriter a certificate, dated the Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer or President and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) i. The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 hereof are true and correct on and as of the Delivery Date, Date and each after giving effect to the consummation of the transactions contemplated by this Agreement; the Company and the Parent Guarantor, as applicable, has complied with all its agreements contained herein and satisfied has fulfilled all the conditions on its part to be performed or satisfied hereunder at or prior to the Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) ii. They have carefully examined the Registration Statement, Statement and the Prospectus and the Pricing Disclosure Package, and, in their opinion, opinion (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, Date and as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of Registration Statement and the Applicable Time, Prospectus did not and do not contain include any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, Date no event has occurred that which should have been set forth in a supplement or amendment to the Registration Statement, Statement or the Prospectus or any Issuer Free Writing Prospectus that has not been so set forthProspectus.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(mi) Neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, Subsidiaries shall have sustained, sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree decree, otherwise than as set forth or contemplated in the Prospectus or (ii) otherwise than as set forth or contemplated in the Prospectus, since such date there shall not have been any change in the capital stock, except pursuant to the Company’s 1999 Equity Participation Plan, 2001 Equity Participation Plan, the Company’s 1999 Employee Stock Purchase Plan, shares of common stock of the Company issued pursuant to the registration statements on Form S-4 (File Nos. 333-71460 and 333-46730) and shares of common stock of the Company issued pursuant to Section 3(a)(9) of the Securities Act in connection with debt-for-equity transactions or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, Subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as that would have a wholeMaterial Adverse Effect, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeUnderwriter, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the payment for and delivery of the Securities Stock being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ok) Subsequent to the execution and delivery of this AgreementAgreement (i) no downgrading shall have occurred in 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, with possible negative implications, its 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 NYSE New York Stock Exchange, the Nasdaq National Market or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a material disruption in securities settlement, payment or clearance services in the United States, (iii) a banking moratorium shall have been declared by federal Federal or New York state or European Union authorities, (iiiiv) a member state any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity, crisis or emergency if, in the judgment of the European Union Underwriter, the effect of any such attack, outbreak, escalation, act, declaration, calamity, crisis or emergency makes it impractical or inadvisable to proceed with the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state completion of the European Union offering or sale of and payment for the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States Stock, or (ivv) there shall have occurred such the occurrence of any other calamity, crisis (including without limitation as a result of terrorist activities), or material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof conditions (or the effect of international conditions on the financial markets in the European Union or United States shall be such), ) as to make it, in the judgment of the RepresentativeUnderwriter, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the Delivery Date on the terms and in the manner contemplated in the ProspectusProspectus or that, in the judgment of the Underwriter, would materially and adversely affect the financial markets or the markets for the Stock and or debt securities.
(m) There shall exist at and as of the Delivery Date no conditions that would constitute a default (or an event that with notice or the lapse of time, or both, would constitute a default) under the Senior Credit Agreement.
(n) The National Market System shall have approved the Stock for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(o) The Underwriter shall have received from each of Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxxx an executed letter in the form of Exhibit A pursuant to Section 5(i) hereto. 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 (Sba Communications Corp), Underwriting Agreement (Sba Communications Corp)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters Underwriter hereunder are subject to the accuracy, when made and again on the Delivery DateDate (as if made again on and as of such date), of the representations and warranties of the Company and the Parent Guarantor Selling Shareholders contained herein, to the performance by each of the Company and the Parent Guarantor Selling Shareholders of its their respective obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof or 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 that purpose shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No The representations and warranties of the Company and the Selling Shareholders contained herein shall be true and correct on the date hereof and on and as of the Delivery Date; and the statements of the Company, its officers and each Selling Shareholder made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Delivery Date.
(c) The Underwriter shall not have discovered and or disclosed to the Company on or prior to the Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the UnderwritersUnderwriter, is material or omits to state 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.
(cd) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, the Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the UnderwritersUnderwriter, and the Company and the Parent Guarantor 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) Xxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 (Sba Communications Corp), Underwriting Agreement (Sba Communications Corp)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company BreitBurn Parties and the Parent Guarantor Selling Unitholder contained herein, to the performance by each of the Company BreitBurn Parties and the Parent Guarantor Selling Unitholder of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Partnership shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company Partnership on or prior to the such Delivery Date that the Registration Statement, as of the latest Effective Date, any Preliminary Prospectus or the Prospectus as of its respective date and on the applicable Delivery Date or the Pricing Disclosure PackagePackage as of the Applicable Time, or in each case including any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for the Underwriters, is material or omits to state 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 misleadingmisleading (in the case of any Preliminary Prospectus, the Prospectus or the Pricing Disclosure Package, in the light of the circumstances under which such statements were made).
(c) All corporate corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesUnits, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to Xxxxx Xxxxx L.L.P., counsel for the Underwriters, and the Company and the Parent Guarantor Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP Xxxxxx L.L.P. shall have furnished to the Representative Representatives its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorPartnership, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibits A-1 and A-2. R. Exhibit A.
(e) Xxxx Xxxxxx Xxxxxxx & Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent GuarantorPLC, shall have furnished to the Representative his Representatives its written opinion, at as local Michigan counsel to the request BreitBurn Entities organized under the laws of the Company and the Parent GuarantorState of Michigan, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeInitial Purchasers, substantially in the form attached hereto as Exhibit A-3.B.
(ef) Xxxxxx & Xxxxxxxxx X.X. Xxxxxxx X. Xxxxx, the General Partner’s Executive Vice President and General Counsel, shall have furnished to the Representative its Representatives his written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibit A-4.C.
(fg) Xxxxx Xxxx & Xxxxxxxx, LLP shall have furnished to the Representatives its written opinion, as counsel to the Selling Unitholder, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit D.
(h) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gi) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 under the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardSecurities Act, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary ProspectusPricing Disclosure Package, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and (iii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hj) With respect to the letter of KPMG PricewaterhouseCoopers LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Underwriters concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Partnership shall have furnished to the Representative Representatives a “bring-down” letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of under the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardSecurities Act, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(k) At the time of execution of this Agreement and the Closing Date, the Underwriters shall have received from each of the Reserve Engineers a letter, in form and substance satisfactory to the Representatives confirming certain matters concerning their engagement and the use of their Reserve Reports and information derived from their Reserve Reports in the Pricing Disclosure Package and the Preliminary Prospectus.
(l) Except as described in the Pricing Disclosure Package, (i) none of the BreitBurn Entities shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, any loss or interference with its respective 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 (ii) and, since such date, there shall not have been any change in the capitalization or long-term debt of any of the BreitBurn Entities or any change in or affecting the condition (financial or otherwise), results of operations, unitholders’ equity, properties, management or business of the BreitBurn Entities taken as a whole, the effect of which, in any such case described in clause (i) or (ii) is, individually or in the aggregate, in the judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Units being delivered on such Delivery Date on the terms and in the manner contemplated in the Pricing Disclosure Package.
(m) Each of the Company and the Parent Guarantor BreitBurn Parties shall have furnished or caused to be furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case of the Company, and signed on its behalf by the Chief Executive Officer and the Chief Financial Officer, in the case Officer of the Parent GuarantorGeneral Partner, stating or other officers satisfactory to the Representatives, as to such matters as the Representatives may reasonably request, including, without limitation, a statement that:
(i) The representations, representations and warranties and agreements of the Company and the Parent Guarantor, as applicable, BreitBurn Parties in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has BreitBurn Parties have complied with all its their agreements contained herein and satisfied all the conditions on its their part to be performed or satisfied hereunder at or prior to the such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, Partnership of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the latest Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the latest Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(jn) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted Subsequent to the NYSE a listing application with respect to earlier of (A) the Notes.
Applicable Time and (lB) The Securities shall be eligible for clearance the execution and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantordelivery of this Agreement, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, no downgrading shall have occurred in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to rating accorded any debt securities or preferred stock issued or guaranteed by any of the Parent Guarantor or any of its subsidiaries, including the Company, BreitBurn Entities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62by the Commission for purposes of Rule 436(g)(2) of under the Exchange Act or any public announcement that any Securities Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review review, or has changed its outlook with respect to, its rating of any debt securities or preferred stock issued or guaranteed by any of the BreitBurn Entities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(o) 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 NYSE 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 the Parent Guarantor Partnership on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the ProspectusPricing Disclosure Package.
(p) The Lock-Up Agreements from the persons or entities listed in Schedule VI and set forth in Exhibit E hereto shall be in full force and effect on such Delivery Date.
(q) The Selling Unitholder shall have furnished to the Representatives a certificate, dated such Delivery Date, signed on its behalf by an executive officer of the Selling Unitholder, as to such matters as the Representatives may reasonably request, including, without limitation, a statement that the representations and warranties of the Selling Unitholder in Section 2 are true and correct on and as of such Delivery Date, and the Selling Unitholder 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.
(r) The Representatives shall have received evidence to their satisfaction that JPMorgan Chase Bank, N.A. has executed and delivered all required releases or consents with respect to the Units to be delivered on such date, and that such Units, when delivered to the Underwriters, will be released from, and no longer subject to, the Pledge.
(s) On or prior to each Delivery Date, the BreitBurn Parties and the Selling Unitholder shall have furnished to the Underwriters such further certificates and documents as the 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 counsel for the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (BreitBurn Energy Partners L.P.), Underwriting Agreement (Quicksilver Resources Inc)
Conditions of Underwriters’ Obligations. The respective several obligations of the Underwriters hereunder are to purchase and pay for the Units, as provided herein, shall be subject to the accuracy, when made as of the date hereof and on the as of each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor EVEP Parties contained herein, to the performance by each the EVEP Parties of the Company their covenants and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus All filings required by Rule 424 and Rule 430A of the 1933 Act Rules and Regulations shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no . No stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Final Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such that purpose shall have been initiated or, to the knowledge of the Partnership or the Underwriters, threatened or contemplated by the Commission; , and any request of the Commission for inclusion of additional information (to be included in the Registration Statement or the Final Prospectus or otherwise otherwise) shall have been complied with; and the Commission shall not have notified the Company of any objection with to the use reasonable satisfaction of the form of the Registration StatementUnderwriters.
(b) No Underwriter shall have discovered and disclosed to advised the Company Partnership on or prior to the applicable Delivery Date that the Registration Statement, the Prospectus Disclosure Package or the Pricing Disclosure Package, Final Prospectus or any amendment or supplement thereto, thereto contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLPthe Underwriters (upon the advice of counsel) is material, counsel for the Underwriters, is material or omits to state a fact which, in the opinion of such the Underwriters (upon the advice of counsel, ) is material and is required to be stated therein or is necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this AgreementOn each Delivery Date, the SecuritiesUnderwriters shall have received the opinion of Hxxxxx and Bxxxx, the Registration StatementLLP, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent GuarantorPartnership, addressed to the Underwriters them and dated the applicable Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially in to the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, effect set forth on Exhibit B hereto.
(d) The Underwriters shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the received on each Delivery Date, in form and substance reasonably satisfactory to the Representativefrom Vxxxxx & Exxxxx L.L.P., substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the applicable Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related such matters as the Representative Underwriters may reasonably require, ; and the Company and the Parent Guarantor EVEP Parties shall have furnished to such counsel such documents as they reasonably request for the purpose purposes of enabling them to review or pass upon such matterson the matters referred to in this Section 6(d) and in order to evidence the accuracy, completeness and satisfaction of the representations, warranties and conditions herein contained.
(ge) At the time of execution of this AgreementAgreement and on each Delivery Date, the Representative Underwriters shall have received from KPMG Deloitte & Touche LLP a letterletter or letters, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent such firm is a registered public accountants accounting firm within the meaning of the Securities 1933 Act and the rules of the PCAOB and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus and the Final Prospectus, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the various financial information regarding in the Company Registration Statement, the Prospectus, any Preliminary Prospectus and the Parent Guarantor any Permitted Free Writing Prospectuses and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hf) With respect to the letter or letters of KPMG Deloitte & Touche LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Underwriters concurrently with the execution of this Agreement (the “initial KPMG letterletters”), the Parent Guarantor Partnership shall have furnished to the Representative Underwriters a letter (the “bring-down KPMG letter”) of such accountants, in form and substance reasonably satisfactory to the Underwriters, addressed to the Underwriters and dated the on each Delivery Date (i) confirming that they are independent such firm is a registered public accountants accounting firm within the meaning of the Securities 1933 Act and the rules of the PCAOB and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter Delivery Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Disclosure Package and the Final Prospectus, as of a date not more than three five days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letters.
(g) At the time of execution of this Agreement, the Underwriters shall have received from Cxxxxx, Gxxxxxxxx & Associates, Inc. a letter, in form and substance reasonably satisfactory to the Underwriters, addressed to the Underwriters and dated the date hereof.
(h) With respect to the letter of Cxxxxx, Gxxxxxxxx & Associates, Inc. referred to in the preceding paragraph and delivered to the Underwriters concurrently with the execution of this Agreement, the Partnership shall have furnished to the Underwriters a letter of such reserve engineers, addressed to the Underwriters and dated each Delivery Date, confirming in all material respects covering the matters in the letter referred to in the preceding paragraph.
(i) Each of Except as set forth in the Company Disclosure Package and the Parent Guarantor shall have furnished to the Representative a certificateFinal Prospectus, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements none of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters Partnership Entities shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, sustained since the date of the latest audited financial statements included contained or incorporated by reference in the most recent Preliminary ProspectusRegistration Statement, the Disclosure Package and in the Final Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order order, investigation or decree or decree; and (ii) since subsequent to the respective dates as of which such date information is given in the Registration Statement, the Disclosure Package and the Final Prospectus (or any amendment or supplement thereto), none of the Partnership Entities shall have incurred any liability or obligation, direct or contingent, or entered into any transactions, and there shall not have been any change in the capital stock capitalization or short-term or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, Partnership Entities or any change, or any development involving or which might reasonably be expected to involve a prospective change, change in or affecting the condition (financial or otherwiseother), net worth, partners’ or members’ equity, business, affairs, management, prospects, results of operations, stockholders’ equity, properties, management, business operations or prospects cash flow of the Parent Guarantor and its subsidiaries, including the Company, taken as a wholePartnership Entities, the effect of which, in any such case described in clause (i) or (ii), is, is in the judgment of the Representative, Underwriters so material and or adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Final Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(oj) Subsequent to the execution and delivery of to this Agreement, Agreement there shall not have occurred any of the following: (i) trading in securities generally on the NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, NASDAQ shall have been suspended or materially limited or suspended, the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Partnership on any exchange or in the over-the-counter market shall have been suspended, (iii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iiiiv) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (ivv) there shall have occurred such a material adverse change in general economic, political or financial conditions, conditions or any other calamity or crisis 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 European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering offering, issuance or delivery sale of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Final Prospectus.
(k) The Underwriters shall have received certificates, dated each Delivery Date and signed by chief executive officer and the chief financial officer, in their capacities as such, (or persons holding similar positions, as applicable) of each of the EVEP Parties, stating that:
(i) the conditions set forth in Section 6(a) have been fully satisfied;
(ii) such EVEP Party has examined the Registration Statement, the Disclosure Package and the Final Prospectus and any amendment or supplement thereto, as well as each electronic roadshow used in connection with the offering, and nothing has come to such EVEP Party’s attention that would lead it to believe that: (A)
(1) the Registration Statement, including the documents incorporated therein by reference, as of the most recent Effective Date, (2) the Final Prospectus, including any documents incorporated by reference therein, as of the date of the Final Prospectus and as of such Delivery Date, and (3) the Disclosure Package, as of the Execution Time, contained and contain any untrue statement of a material fact and omitted and omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (B) since the Effective Date, there has occurred any event required to be set forth in an amendment or supplement to the Registration Statement or the Prospectus which has not been so set forth;
(iii) all representations and warranties made herein by such EVEP Party are true and correct as of such Delivery Date, with the same effect as if made on and as of such Delivery Date; and all agreements herein to be performed or complied with by such EVEP Party on or prior to such Delivery Date have been duly performed and complied with by such EVEP Party;
(iv) no event contemplated by Section 6(i) has occurred; and
(v) covering such other matters as the Underwriters may reasonably request.
(l) The EVEP Parties shall not have failed, refused, or been unable, at or prior to each Delivery Date to have performed any agreement on their part to be performed or any of the conditions herein contained and required to be performed or satisfied by them at or prior to such Delivery Date.
(m) The Partnership shall have furnished to the Underwriters at each Delivery Date such further information, opinions, certificates, letters and documents as the Underwriters may have reasonably requested.
(n) The Units are quoted on the NASDAQ.
(o) The Underwriters shall have received duly and validly executed letter agreements referred to in Section 5(a)(ix) hereof. All such opinions, letterscertificates, evidence letters and certificates mentioned above or elsewhere in this Agreement shall be deemed to documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance reasonably satisfactory to the Underwriters and to Vxxxxx & Exxxxx L.L.P., counsel for the several Underwriters. The Partnership will furnish the Underwriters with such signed and conformed copies of such opinions, certificates, letters and documents as they may request. In accordance with the provisions of Section 10, hereof, this Agreement may be terminated by the Underwriters at any time at or prior to each Delivery Date by notice to the Partnership if any condition specified in Section 6 shall not have been satisfied on or prior to such Delivery Date.
Appears in 2 contracts
Samples: Underwriting Agreement (EV Energy Partners, LP), Underwriting Agreement (EV Energy Partners, LP)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company Trust and the Parent Guarantor Selling Unitholder Parties contained herein, to the performance by each of the Company Trust and the Parent Guarantor Selling Unitholder Parties of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Trust and the Selling Unitholder Parties shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company Trust or the Selling Unitholder Parties on or prior to the such Delivery Date that the Registration 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 Xxxxx Xxxx Cravath, Swaine & Xxxxxxxx Mxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate and other proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesOffered Units, the Registration Statement, the Prospectus Prospectus, and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company Trust and the Parent Guarantor Selling Unitholder 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) Xxxxxx (1) Txxxxxxx & Bird LLP Knight L.L.P. shall have furnished to the Representative Representatives its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorTrust, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibits A-1 and A-2Exhibit B-1; (2) Fxxxxxxxx X. Xxxxxxx, Esq. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative Representatives his written opinion, at as General Counsel to the request of the Company and the Parent GuarantorSelling Unitholder Parties, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the form attached hereto as Exhibit A-3.
B-2; and (e3) Xxxxxx & Xxxxxxxxx X.X. Axxxxxx Xxxxx LLP shall have furnished to the Representative Representatives its written opinion, as Luxembourg counsel to the CompanyTrust and the Selling Unitholder Parties, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibit A-4B-3.
(fe) The Representative Representatives shall have received from Xxxxx Xxxx Cravath, Swaine & Xxxxxxxx Mxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesOffered Units, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company Trust and the Parent Guarantor Selling Unitholder Parties shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gf) At the time of execution of this Agreement, the Representative Representatives shall have received (1) from KPMG Deloitte & Touche LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings; and (2) from PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (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 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.
(hg) With respect to the letter of KPMG each of Deloitte & Touche LLP and PricewaterhouseCoopers LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Trust and the Selling Unitholder Parties shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of each of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ih) Each of the Company and the Parent Guarantor The Trust shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case an authorized officer of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case trustee of the Parent Guarantor, Trust stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, Trust in Section 1 and Section 2.1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, Trust 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; , and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficer, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have Such officer has carefully examined the Registration Statement, Statement and the Prospectus and the Pricing Disclosure Package, Package and, in their his or her opinion, (A) (1A)(1) the Registration Statement, as of the Effective DateTime, (2) the Prospectus, as of its date and on the as of such Delivery Date, or and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, except in the case of the Pricing Disclosure Package, that the price of the Offered Units and disclosures directly relating thereto are included on the cover page of the Prospectus and (B) since the Effective DateTime, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(ji) Burlington shall have furnished to the Representatives a certificate, dated such Delivery Date, of its Chief Financial Officer or Treasurer stating that:
(i) The Underwriters shall have received an executed copy representations, warranties and agreements of the Paying Agency AgreementSelling Unitholder Parties in Section 1 and Section 2.2 are true and correct on and as of such Delivery Date, and the Selling Unitholder Parties have complied with all their agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings for that purpose have been instituted or, to the knowledge of such officer, threatened; and
(iii) Such officer has carefully examined the Registration Statement and the Prospectus and the Pricing Disclosure Package and, in his or her opinion, (A)(1) the Registration Statement, as of the Effective Time, (2) the Prospectus, as of its date and as of such Delivery Date, and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, except in the case of the Pricing Disclosure Package, that the price of the Offered Units and disclosures directly relating thereto are included on the cover page of the Prospectus and (B) since the Effective Time, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Free Writing Prospectus that has not been so set forth.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(li) The Securities Trust shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall not have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt capitalization of the Parent Guarantor or any of its subsidiaries, including the Company, Trust or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsdistributable income, stockholders’ equitytrust corpus, propertiesassets, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a wholeTrust, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Offered Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ok) 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 NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor Trust on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Offered Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 (Burlington Resources Inc), Underwriting Agreement (Permian Basin Royalty Trust)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when as of the date hereof and the Closing Date (as if made and on at the Delivery Closing Date), of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in a timely fashion in accordance with Section 5(a)(i)4(a) hereof; all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereofFinal Term Sheet) required by Rule 424(b) or Rule 433 of the Rules and Regulations shall have been mademade within the applicable time periods prescribed for such filings by the applicable rules, and no such filings shall will have been made without the consent of the RepresentativeRepresentatives; no stop order suspending the effectiveness of the Registration Statement or any amendment or supplement thereto, preventing or suspending the use of the Prospectus or Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification of the Notes for offering or sale in any jurisdiction shall have been issued and issued; no proceeding or examination proceedings for the issuance of any such purpose order shall have been initiated or threatened threatened; no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations shall have been received by the CommissionCompany; and any request of the Commission for inclusion of additional information (to be included in the Registration Statement or the Prospectus or otherwise otherwise) shall have been disclosed to you and complied with; and the Commission shall not have notified the Company of any objection with to the use of the form of the Registration Statementyour satisfaction.
(b) No Underwriter shall have been advised by the Company or shall have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, which in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwritersyour reasonable judgment, is material material, or omits to state a fact which, in the opinion of such counselyour reasonable judgment, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the The Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx Sxxxxxx Xxxxxxx & Xxxxxxxx Bxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Closing Date, with respect to the validity, issuance and sale of the SecuritiesNotes, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Underwriters may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) On the Closing Date, you shall have received the opinion (addressed to the Underwriters) of Faegre Drinker Bxxxxx & Rxxxx LLP, counsel for the Company, dated the Closing Date, substantially in the form agreed on or prior to the date hereof.
(e) On the Closing Date, you shall have received the opinion (addressed to the Underwriters) of the Senior Vice President – Corporate Secretary & Securities and Corporate Law of the Company, dated the Closing Date, substantially in the form agreed on or prior to the date hereof.
(f) On the Closing Date, you shall have received a certificate, dated the Closing Date and addressed to you, signed by the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, the Senior Vice President and Treasurer, the Senior Vice President – Corporate Secretary & Securities and Corporate Law or the Senior Vice President – Corporate Finance & Corporate Controller of the Company to the effect that: (i) the representations and warranties of the Company contained in this Agreement are true and correct, as if made at and as of the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be 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 proceeding for that purpose has been initiated or, to the best of their knowledge, threatened, 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 has been received by the Company, and no order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission; (iii) all filings required by Rule 424(b) or Rule 433 of the Rules and Regulations have been made within the applicable time periods prescribed for such filings by the applicable rules; (iv) the signers of such certificate have carefully examined the Registration Statement and the Prospectus, and any amendments or supplements thereto (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus), and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (v) since the Effective Date of the Initial Registration Statement, there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus which has not been so set forth and there has been no document required to be filed under the Exchange Act and the Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus that has not been so filed; and (vi) no event contemplated by Section 6(g) hereof will have occurred.
(g) Since the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and in the most recent Preliminary Prospectus (exclusive of any supplement thereto filed subsequent to the date hereof), neither the Company nor any of its Subsidiaries will have sustained any loss by fire, flood, accident or other calamity, or will have become a party to or the subject of any litigation or legal or governmental proceeding, which is materially adverse to the Company and its Subsidiaries taken as a whole, nor will there have been a material adverse change in the condition (financial or otherwise), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole, regardless of whether arising in the ordinary course of business, which loss, litigation or change, in the judgement of the Representatives, will render it impractical or inadvisable to proceed with the payment for and delivery of the Notes.
(h) At the time of execution of this Agreement, the Representative Underwriters shall have received from KPMG PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the RepresentativeUnderwriters, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent registered 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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hi) With respect to the letter of KPMG PricewaterhouseCoopers LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Underwriters concurrently with the execution of this Agreement (the “initial KPMG letterInitial Letter”), the Parent Guarantor Company shall have furnished to the Representative Underwriters a letter (the “bringBring-down KPMG letterDown Letter”) of such accountants, addressed to the Underwriters and dated the Delivery Closing Date (i) confirming that they are independent registered 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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bringBring-down KPMG letter Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bringBring-down KPMG letterDown Letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter Initial Letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forthInitial Letter.
(j) The Underwriters Prior to or on the Closing Date, you shall have received an executed copy of been furnished by the Paying Agency AgreementCompany such additional documents and certificates as you or counsel for the Underwriters may reasonably request.
(k) Application Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement (i) no downgrading shall have been made occurred in the rating accorded to list the Notes on the NYSE for trading on such exchange and, in connection therewith, debt securities of the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, Subsidiaries by any “nationally recognized statistical rating organization” as such that term is defined in Section 3(a)(62) of under the Exchange Act or any public announcement that any Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review its rating of with possible negative implications any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)securities.
(ol) 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 NYSE New York Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a banking moratorium shall have been declared by federal Federal or New York state or European Union authorities, ; (iii) a member state of the European Union material disruption in commercial banking or securities settlement or clearance systems shall have occurred; (iv) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States States; or (ivv) there shall have occurred such a material adverse change change, or an event which would reasonably be expected to have a prospective material adverse change, in general economic, political or financial conditionsconditions or prospects, 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 European Union or United States shall be such) that in the case of clauses (i), (iv) and (v) are such as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Notes being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the Prospectus.
(m) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Notes; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Notes.
(n) The Representatives shall have received on or prior to the Closing Date satisfactory evidence of the good standing of the Company and its Significant Subsidiaries in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representatives may reasonably request, in each case as of a recent date and in a writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions; provided, however, that the Company shall have used commercially reasonable efforts to deliver satisfactory evidence of the good standing of RiverSource Life Insurance Co. of New York.
(o) On the Closing Date, you shall have received a certificate, dated the Closing Date and addressed to you, signed by the Chief Financial Officer, Treasurer or Controller of the Company, listing all agreements and instruments to which the Company is a party or by which it is bound which contain any covenant or restriction which limits or restricts the Company’s freedom to incur indebtedness and confirming that after giving effect to the offering of the Notes, the issuance and sale of the Notes would not result in any breach of, or constitute any default under, such agreements and instruments, and addressing such other matters, and substantially in the form, set forth in Schedule III hereto. 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 only if they are satisfactory in form and substance to you in your reasonable judgment. The Company will furnish to you conformed copies of such opinions, certificates, letters and other documents in such number as you will reasonably satisfactory request. If any of the conditions specified in this Section 6 are not fulfilled when and as required by this Agreement, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by you. Any such cancellation will be without liability of the Underwriters to counsel for the UnderwritersCompany. Notice of such cancellation will be given to the Company in writing, or by telephone and confirmed in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Ameriprise Financial Inc), Underwriting Agreement (Ameriprise Financial Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Partnership Parties contained herein, to the performance by each the Partnership Parties of the Company and the Parent Guarantor of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i5(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 . The Partnership shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and . If the Commission Partnership has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall not have notified become effective by 10:00 p.m., Washington, D.C. time, on the Company date of any objection to the use of the form of the Registration Statementthis Agreement.
(b) No Underwriter shall have discovered and disclosed to the Company Partnership on or prior to the such Delivery Date that (i) the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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 (ii) the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, is material or omits to state a fact which, in the opinion of such counsel is material and is necessary to make the statements therein, in the light of the circumstances existing on such Delivery Date, not misleading.
(c) All corporate corporate, limited liability company and limited partnership proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesOperative Agreements, the Transactions, the Units, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement Agreement, the Transactions and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP Xxxxxx L.L.P. shall have furnished to the Representative Representatives its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorPartnership Parties, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the form attached hereto as Exhibit A-3.C.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gf) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hg) With respect to the letter of KPMG LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Partnership shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, Commission; (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letter; and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ih) Each of the Company and the Parent Guarantor The Partnership Parties shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case Officer of each of the Parent GuarantorGeneral Partner and Antero as to such matters as the Representatives may reasonably request, stating thatincluding, without limitation, a statement:
(i) The That the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, applicable Partnership Parties in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has applicable Partnership Parties have complied with all its of their agreements contained herein and satisfied all the conditions on its their part to be performed or satisfied hereunder at or prior to the such Delivery Date;
(ii) No That 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 personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They That they have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (except in 2) the case Prospectus, as of its date and on the Registration Statementapplicable Delivery Date did not and does not contain any untrue statement of a material fact and did not and does not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (3) the Pricing Disclosure Package, as of the Applicable Time, did not contain any untrue statement of a material fact and did not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(ji) The Underwriters shall have received an executed copy Except as described in the most recent Preliminary Prospectus, (i) none of the Paying Agency Agreement.
(k) Application shall have been made to list Contributed Assets or the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, Partnership Entities shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or and (ii) since such date there shall not have been any change in the capital stock equity or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, Partnership Entities or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, management or business or prospects of the Parent Guarantor and its subsidiaries, including the Company, Partnership Entities taken as a whole, the effect of which, in any such case described in clause (i) or (ii), 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 public offering or the delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(nj) Since Subsequent to the date hereof, there execution and delivery of this Agreement (i) no downgrading shall not have occurred any downgrading with respect to any in the rating accorded the Partnership’s debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, preferred equity securities by any “nationally recognized statistical rating organization” (as such term is defined by the Commission in Section 3(a)(62) of the Exchange Act or any public announcement that any Act) and (ii) no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any of the Partnership’s debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)or preferred equity securities.
(ok) Subsequent to the execution and delivery of this Agreement, 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 NYSE Commission under Section 6 of the Exchange Act (including the New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market or in the over-the-counter marketThe NASDAQ Capital Market), or (B) trading in any securities of the Company or the Parent Guarantor Partnership on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state or European Union authorities, ; (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States States; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(l) The New York Stock Exchange shall have approved the Units for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(m) The Lock-Up Agreements between the Representatives and the officers and directors of the General Partner and unitholders of the Partnership set forth on Schedule II hereto, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(n) On or prior to each Delivery Date, the Partnership Parties shall have furnished to the Underwriters such further certificates and documents as the Representatives may reasonably request.
(o) As of the Initial Delivery Date, all of the Transactions shall have been completed and will be effective and valid in accordance with the applicable law. 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 (Antero Midstream Partners LP), Underwriting Agreement (Antero Resources Midstream LLC)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are Underwriter herein shall be subject to the accuracy, when made and on the Delivery Date, accuracy of the representations and warranties on the part of the Company herein as of the date hereof, and as of each Closing Date, to the Parent Guarantor contained hereinaccuracy of the written statements of Company officers made pursuant to the provisions hereof, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Prospectus Registration Statement shall have been timely filed with become effective not later than 5:00 P.M., Minneapolis, Minnesota time, on the Commission in accordance with Section 5(a)(i); all filings (includingdate of this Agreement or on such later time and date as shall be satisfactory to the Underwriter, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing any amendment thereof or suspending supplement or the use qualification of the Prospectus Units for offering or any Issuer Free Writing Prospectus sale shall have been issued and no proceeding or examination proceedings for such that purpose shall have been initiated instituted or shall be pending or shall be threatened by the Commission; Commission or by any state securities authority, and any request of the Commission for inclusion of additional information (to be included in the Registration Statement or the Prospectus or otherwise otherwise) shall have been complied with; and the Commission shall not have notified the Company of any objection with to the use of the form of the Registration StatementUnderwriter's satisfaction.
(b) No The Underwriter shall not have discovered and disclosed to advised the Company on or prior to the Delivery Date that the Registration Statement, the Prospectus Statement or the Pricing Disclosure PackageProspectus, or any amendment thereof or supplement thereto, contains an untrue statement of a fact whichthat, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the UnderwritersUnderwriter's reasonable opinion, is material material, or omits to state a fact whichthat, in the opinion of such counselyour reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleadingmisleading provided that this Section 5(b) shall not apply to statements in, or omissions from, the Registration Statement or Prospectus, or any amendment thereof or supplement thereto that are based upon and conform to written information provided by the Underwriter specifically for use in the Registration Statement or Prospectus.
(c) All On or prior to each Closing Date, the form and validity of the Units, the legality and sufficiency of the corporate proceedings and matters relating to the incorporation of the Company and other legal matters incident to the authorization, form and validity issuance of this Agreementthe Units, the Securities, form of the Registration Statement, Statement and the Prospectus and of any Issuer Free Writing Prospectusamendments thereof or supplements thereto filed prior to such Closing Date (other than financial statements and schedules and other financial or statistical data included therein), the authorization, execution, and all other legal matters relating to delivery of this Agreement and the transactions contemplated hereby description of the Units contained in the Prospectus shall be have been reasonably satisfactory in all material respects to counsel for approved by the UnderwritersUnderwriter. In connection with such determination, and the Company and the Parent Guarantor shall have furnished to the Underwriter such counsel all documents and information that they as you may reasonably request to enable them have requested for the purpose of enabling the Underwriter to pass upon such matters.
(d) Xxxxxx & Bird LLP On each Closing Date there shall have been furnished to the Representative its written Underwriter, the favorable opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, (addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel Underwriter) of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Maslxx Xxxxxxx Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinionXrand, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLPa Professional Limited Liability Partnership, counsel for the Underwriters, such opinion and 10b-5 letterCompany, dated the Delivery such Closing Date, with respect and in form reasonably satisfactory to counsel for the Underwriter, to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating effect that:
(i) The representationsCompany is a corporation duly incorporated, warranties validly existing and agreements in good standing under the laws of the State of Minnesota, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. The Company and has no subsidiaries other than as described in the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;Prospectus.
(ii) The authorized capital stock of the Company as of the date of this Agreement is as set forth in the Prospectus. The outstanding shares of the Common Stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable. The Units (and their components) have been duly authorized and, upon issuance, delivery and payment therefor as described in this Agreement, will be validly issued, fully paid and nonassessable. The shares of Common Stock underlying the Warrants have been duly authorized and reserved for issuance and when issued, sold and delivered in accordance with the terms of the Warrant, will be validly issued, fully paid and nonassessable. The issuance, sale and delivery of the Underwriter's Warrant has been duly authorized and the shares (the "WARRANT SHARES") of Common Stock issuable upon the exercise thereof have been reserved for issuance upon such exercise. The Warrant Shares, when issued, sold and delivered in accordance with the terms of the Underwriter's Warrant, will be validly issued, fully paid and nonassessable. No preemptive rights of, or rights of refusal in favor of, stockholders of the Company exist with respect to the Units (or any component thereof), the Underwriter's Warrant or the Warrant Shares, or the issue and sale thereof, pursuant to the Company's Articles of Incorporation or Bylaws.
(iii) The authorized securities of the Company conform as to legal matters in all material respects to the description thereof set forth in the Prospectus under the caption "Description of Securities." The certificates representing the Warrants and the Common Stock are in proper form under the Minnesota Business Corporation Act.
(iv) The Registration Statement has become effective under the Securities Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued; or suspending or preventing the use of the Prospectus is in effect and, to our knowledge, no proceedings or examination for that purpose have been instituted or, to or are pending by the knowledge of such persons, threatened; Commission.
(v) The Registration Statement and the Commission has not notified Prospectus comply as to form in all material respects with the Company or requirements of the Parent GuarantorSecurities Act and with the Rules and Regulations, except the financial statements, the notes thereto and the related schedules and other financial and statistical data contained therein, as applicableto which we express no opinion.
(vi) Counsel knows of no contracts, of any objection leases, documents or pending legal proceedings that are required to be described in the use of the form of Prospectus or to be filed as exhibits to the Registration Statement that are not so described or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forthfiled.
(jvii) The Underwriters shall have received an executed copy of Underwriting Agreement, the Paying Agency Agreement.
(k) Application shall Warrant Agreement and the Underwriter's Warrant have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated duly authorized by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental all requisite corporate action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 (Hotel Discovery Inc), Underwriting Agreement (Hotel Discovery Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Selling Shareholders contained herein, to the performance by each of the Company and the Parent Guarantor Selling Shareholders of its their obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); 6(a) hereof, the Registration Statement and all post-effective amendments to the Registration Statement shall have become effective, all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 424 and Rule 430A of the Rules and Regulations shall have been made, made and no such filings shall have been made without the consent of the RepresentativeUnderwriters; no stop order suspending the effectiveness of the Registration Statement or preventing any amendment or supplement thereto or suspending the use qualification of the Prospectus Stock for offering or sale in any Issuer Free Writing Prospectus jurisdiction shall have been issued issued; and no proceeding or examination for the issuance of any such purpose order shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection disclosed to the use of the form of the Registration StatementUnderwriters and complied with to their satisfaction.
(b) No Underwriter shall have been advised by the Company or shall have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, Statement or 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 Xxxxx Xxxx & Xxxxxxxx LLP, the Underwriters or in the opinion of counsel for to the Underwriters, is material or omits to state a fact which, in the opinion of such counselthe Underwriters or in the opinion of counsel to the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesCustody Agreement, the Stock, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) Xxxxxx & Bird Xxxxx and Xxxxx LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its their written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially to the effect set forth in the forms attached hereto as Exhibit A-4B hereto.
(fe) The Representative Underwriters shall have received from Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Underwriters may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) The respective counsel for each Selling Shareholder set forth on Schedule 2 hereto each shall have furnished to the Underwriters their written opinion, as counsel to each of the Selling Shareholders for whom they are acting as counsel, addressed to the Underwriters in form and substance reasonably satisfactory to the Underwriters dated such Delivery Date, to the effect set forth on Exhibit C hereto.
(g) At the time of execution of this Agreement, the Representative Underwriters shall have received from KPMG Ernst & Young LLP a letter, in form and substance satisfactory to the RepresentativeUnderwriters, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG Ernst & Young LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Underwriters concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Underwriters a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three five days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each The Underwriters shall have received from the Company’s independent petroleum engineers, a letter or letters dated, respectively, the date of this Agreement and each Delivery Date, in form and substance satisfactory to the Underwriters, each stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which information regarding the natural gas and oil reserves and future net cash flows is given in the Prospectus, as of the date not more than five days prior to the date of such letter), the conclusions and findings of such firm with respect to the natural gas and oil reserves of the Company and such other matters as the Parent Guarantor Underwriters reasonably may request.
(j) The Company shall have furnished to the Representative Underwriters a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) 1. The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 hereof are true and correct on as if made and as of the such Delivery Date, and each of ; the Company and the Parent Guarantor, as applicable, has complied with all its agreements contained herein and satisfied all the conditions on its part to be performed complied with or satisfied hereunder at or prior to the such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) 2. They have carefully examined the Registration Statement, Statement and the Prospectus and the Pricing Disclosure Package, andany amendments or supplement thereto, in their opinion, opinion (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date such documents contain all statements and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, information required to be included therein and did not and do not contain include any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, Date no event has occurred that which should have been set forth in a supplement or amendment to the Registration StatementStatement or the Prospectus, and (C) no event contemplated by subsection (k) of this Section 9 in respect of the Prospectus Company or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters Subsidiary shall have received an executed copy of the Paying Agency Agreementoccurred.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(mA) Neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, Subsidiaries shall have sustained, sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree decree, otherwise than as set forth or contemplated in the Prospectus and (iiB) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, Subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (general affairs, management, financial position, stockholders’ equity or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiariesSubsidiaries, including otherwise than as set forth or contemplated in the Company, taken as a wholeProspectus, the effect of which, in any such case described in clause (iA) or (iiB), is, in the judgment of the RepresentativeUnderwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ol) 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 NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, ; (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, including without limitation, limitation as a result of terrorist activities after the date hereof hereof, (or the effect of international conditions on the financial markets in the European Union or United States shall be such), ) as to make it, in the judgment of the RepresentativeUnderwriters, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(m) The New York Stock Exchange, Inc. shall have approved the Stock for listing, subject only to official notice of issuance.
(n) The Underwriters shall have been furnished by the Company such additional documents and certificates as the Underwriters or counsel for the Underwriters may reasonably request.
(o) Each Selling Shareholder (or the Custodian or one or more attorneys-in-fact on behalf of such Selling Shareholder) shall have furnished to the Underwriters on the relevant Delivery Date a certificate, dated such Delivery 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 Delivery 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 Delivery Date.
(p) The Amended and Restated Articles of Incorporation shall have been filed with the Secretary of State of the State of Texas and shall be in effect on the First Delivery Date.
(q) The Company’s issued and outstanding Class A Preferred Stock, par value $.00001 per share, shall have been converted into Common Stock.
(r) The Underwriters shall have received a written certificate executed by all the parties to the Stockholders’ Agreement dated the First Delivery Date, stating that the Stockholders’ Agreement is terminated and is no longer in effect.
(s) At the date of this Agreement, the Underwriters shall have received letters substantially in the form of Exhibit A hereto executed by each shareholder, officer and director of the Company. 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 (W&t Offshore Inc), Underwriting Agreement (W&t Offshore Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i5(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no . No stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified . If the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of any objection to this Agreement. The Exchange Act Registration Statement shall have been filed and shall have become effective under the use of the form of the Registration StatementExchange Act.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx White & Xxxxxxxx Case LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird Proskauer Rose LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative Representatives its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4Representatives.
(fe) The Representative Representatives shall have received from Xxxxx Xxxx White & Xxxxxxxx Case LLP, counsel for the Underwriters, such opinion and 10b-5 negative assurance letter, dated the such Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gf) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG LLP WithumSmith+Xxxxx, PC a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hg) With respect to the letter of KPMG LLP WithumSmith+Xxxxx, PC referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Representatives shall have furnished to the Representative received a letter from WithumSmith+Xxxxx, PC (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters Representatives and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ih) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial OfficerOfficer as to such matters as the Representatives may reasonably request, in the case of the Parent Guarantorincluding, stating thatwithout limitation, a statement:
(i) The That the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No That 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 personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and;
(iii) They That they have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or Date and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, Statement or the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.; and
(jiv) The Underwriters shall have received an executed copy To the effect of the Paying Agency Agreement.
Section 7(i) (k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application provided that no representation with respect to the Notesjudgment of the Representatives need be made).
(li) The Securities (i) the Company shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall not have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its 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 decree, or (ii) since such date there shall not have been any change in the capital stock or stock, long-term debt debt, total assets or total current liabilities of the Parent Guarantor or any of its subsidiaries, including the Company, Company or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), 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 public offering or the delivery of the Securities being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(oj) Subsequent to the execution and delivery of this Agreement, 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 NYSE Commission under Section 6 of the Exchange Act (including the New York Stock Exchange, The Nasdaq Global Select Market, The Nasdaq Global Market or in the over-the-counter marketThe Nasdaq Capital Market), or (B) trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such)) or any other calamity or crisis either within or outside the United States, as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(k) Nasdaq shall have approved the Securities for listing subject only to official notice of issuance and evidence of satisfactory distribution.
(l) The Company shall have furnished to the Representatives at the time of purchase executed copies of the Trust Agreement, the Securities Subscription Agreement, the Share Purchase Agreement, the Registration Rights Agreement, the Administrative Services Agreement and the Letter Agreement.
(m) 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.
(n) On or prior to each Delivery Date, the Company shall have furnished to the Underwriters such further certificates and documents as the 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 2 contracts
Samples: Underwriting Agreement (Lerer Hippeau Acquisition Corp.), Underwriting Agreement (Lerer Hippeau Acquisition Corp.)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made as of the Applicable Time and on the Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 ; the Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, 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 any request of the Commission for inclusion of additional information in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, any Preliminary Prospectus, 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 Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriters, is material or omits to state a fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleadingmisleading (in the case of any Preliminary Prospectus, the Prospectus or the Pricing Disclosure Package, in the light of the circumstances under which such statements were made).
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesNotes, the Registration Statement, any Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Xxxxxx, Xxxx & Bird Xxxxxxxx LLP shall have furnished to the Representative Representatives its written opinion and its 10b-5 negative assurance letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(e) The Representatives shall have received from T. Xxxx Xxxxxx, substantially General Counsel of the Company, his written opinion and negative assurance statement, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the forms attached hereto as Exhibit A-4Representatives.
(f) The Representative Representatives shall have received from Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Date, with respect to the issuance and sale of the SecuritiesNotes, the Registration Statement, the most recent Preliminary Prospectus, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG Ernst & Young LLP and PricewaterhouseCoopers LLP a letterletter or letters, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter or letters of KPMG Ernst & Young LLP and PricewaterhouseCoopers LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of On the Delivery Date, the Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificatecertificate of the Company, signed by an executive officer of the Company, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, contained in Section 1 of this Agreement are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has complied with all of its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Delivery Date;
(ii) No the Prospectus has been timely filed with the Commission in accordance with Section 5(a)(i) of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficer, threatenedthreatened by the Commission; all requests of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise has been complied with; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined since the respective dates as of which information is given in the Registration Statement, the Prospectus Pricing Disclosure Package and the Pricing Disclosure PackageProspectus (exclusive of any amendment or supplement thereto), andthere has been no material adverse change or any development that would reasonably be expected to result in a prospective material adverse change in the financial condition, in their opinionearnings, (A) (1) the Registration Statement, as business or operations of the Effective Date, Company and its subsidiaries (2taken as a whole) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred from that should have been set forth in a supplement or amendment to contemplated in the Registration Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any amendment or any Issuer Free Writing Prospectus that has not been so set forthsupplement thereto).
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since Since the date of the latest audited most recent financial statements included or incorporated by reference in the most recent Preliminary Prospectus and the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving that would reasonably be expected to result in a prospective change, in or affecting the condition (financial or otherwise)condition, results of operations, stockholders’ equity, properties, managementearnings, business or prospects operations of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries (taken as a whole) from that set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), which is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Notes being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(nk) Since Subsequent to the date hereof, there execution and delivery of this Agreement (i) no downgrading shall not have occurred any downgrading with respect to any in the rating accorded the Company’s debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” (as such that term is defined in Section 3(a)(62) of the Exchange Act or any public announcement that any Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any of the Company’s debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)securities.
(ol) 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 NYSE, NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange American LLC or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or limited or the settlement of such trading shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (iii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iiiiv) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (ivv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), in the case of clauses (iv) and (v), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Notes being delivered on the Delivery Date on the terms and in the manner contemplated in the ProspectusProspectus (exclusive of any amendment or supplement thereto).
(m) The Company shall have furnished the Representatives such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, letters, documents, 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 (Williams Companies, Inc.), Underwriting Agreement (Williams Companies, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the Delivery date of the Prospectus and on the Closing Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to ) and Section 5(a)(i5(a)(iv) hereof) required by Rule 433 ; the Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 or pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or any document incorporated by reference therein or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration StatementStatement or any post-effective amendment thereto.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Closing Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the reasonable opinion of Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Indenture, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Xxxxxxxx & Bird Xxxxxxxx LLP shall have furnished to the Representative Underwriters its written opinion and its 10b-5 separate negative assurance letter, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and delivered and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially in addressing the forms matters set forth on Exhibit A attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxxhereto.
(e) Xxxxxx X. Xxxxx, Vice President—Business Strategy and General Counsel of the Parent GuarantorCorporate Secretary/Legal Counsel, shall have furnished to the Representative Underwriters his written opinion, at the request of the Company and the Parent Guarantor, opinion addressed to the Underwriters and delivered and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially in addressing the form matters set forth on Exhibit B attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4hereto.
(f) The Representative Representatives shall have received from Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG PricewaterhouseCoopers LLP a letter, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and the Company and dated the date hereof (i) confirming that they are independent registered 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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG PricewaterhouseCoopers LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor PricewaterhouseCoopers LLP shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and the Company and dated the Delivery Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, Commission; (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three two days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letter; (iii) covering financial information in the Prospectus; and (iiiiv) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each The Company shall have furnished to the Representatives a certificate, dated the Closing Date, of any vice-president of the Company and the Parent Guarantor shall have furnished principal financial officer, vice president/treasurer or principal accounting officer of the Company satisfactory to the Representative a certificate, dated Representatives to the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating effect that:
(i) The representations, representations and warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct with the same force and effect as though expressly made on and as of the Delivery Closing Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose or pursuant to Section 8A under the Securities Act have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the each Effective Date, (2) the Prospectus, as of its date and on as of the Delivery Closing Date, or and (3) the Pricing Disclosure Package, as of the Applicable TimeTime and as of the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of Except as described in the Paying Agency Agreement.
Pricing Disclosure Package and the Prospectus, (ki) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date respective dates as of the latest audited financial statements included or incorporated by reference which information is given in the most recent Preliminary ProspectusPricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock stock; or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects properties of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the reasonable judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery sale of the Securities being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the ProspectusPricing Disclosure Package, the Prospectus or this Agreement.
(nk) Since Subsequent to the date hereofexecution and delivery of this Agreement, there shall not have occurred any downgrading with respect to any debt securities (i) no downgrade in the rating of the Parent Guarantor Company or its financial strength or the rating of any of its subsidiaries, including the Company, ’s securities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act (the “Rating Agencies”) shall have occurred or any public announcement be pending and (ii) no Rating Agency shall have publicly announced that any such organization it has under surveillance or review review, with possible negative implications, its rating of the Company or the Company’s financial strength or its rating of any debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)the Company’s securities.
(ol) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the NYSE New York Stock Exchange or in the over-the-counter marketNASDAQ National Market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state authorities; or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or States, there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) States, there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery sale of the Securities being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the ProspectusPricing Disclosure Package, the Prospectus or this Agreement.
(m) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
(n) At the time of execution of this Agreement and on the Closing Date, the Representatives shall have received a certificate of the Chief Financial Officer of the Company, dated as of such date, in a form reasonable satisfactory to the Representatives.
(o) On or prior to the Closing Date, the Company shall have furnished to the Representatives such further certificates and documents as the 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 2 contracts
Samples: Underwriting Agreement (Southwest Gas Corp), Underwriting Agreement (Southwest Gas Corp)
Conditions of Underwriters’ Obligations. The respective obligations obligation of each Underwriter to purchase and pay for the Underwriters Firm Shares that it has agreed to purchase hereunder are on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, the Closing Date and any Option Closing Date to the accuracy, when made continuing accuracy and on the Delivery Date, fulfillment of the representations and warranties of the Company and the Parent Guarantor contained hereinMiddlesex, to the performance by each of the Company and the Parent Guarantor Middlesex of its covenants and obligations hereunder, and to each of the following additional terms and conditions:
(a) The If required by the Regulations, the Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared SEC pursuant to Section 5(a)(iRule 424(b) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to the Closing Date or any Option Closing Date, as the case may be, no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including any document incorporated by reference therein) or preventing or suspending the use sale of any of the Prospectus or any Issuer Free Writing Prospectus Shares shall have been issued under the Act or any state or foreign securities law, and no proceeding or examination proceedings for such that purpose shall have been initiated or threatened shall be pending or, to the Representatives’ knowledge or the knowledge of Middlesex, shall be contemplated by the Commission; SEC or by any authority in any jurisdiction designated by the Representatives pursuant to Section 5(f) hereof. Any request on the part of the Commission SEC or any state or foreign securities authority for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection with to the use reasonable satisfaction of counsel for the form of the Registration StatementUnderwriters.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, Shares and the form of the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor . Middlesex shall have furnished to such counsel all documents and information that they may have reasonably request requested to enable them to pass upon such matters. The Representatives shall have received from the Underwriters’ counsel, Bxxxxxx Xxxxx Xxxxxxx & Ixxxxxxxx, LLP an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Representatives individually and as representatives of the several Underwriters, which opinion shall be satisfactory in all respects to the Representatives.
(c) The Representatives shall have received a copy of an executed Lock-up Agreement from Middlesex and each of the persons listed on Schedule II hereto.
(d) Xxxxxx & Bird LLP On the Closing Date and any Option Closing Date, there shall have furnished been delivered to the Representative its written Representatives a signed opinion of Nxxxxx, MxXxxxxxxx & Mxxxxx, P.A., counsel for Middlesex, dated as of each such date and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Representatives individually and as representatives of the several Underwriters and dated to the Delivery Date, effect set forth in form and substance Exhibit A hereto or to such effect as is otherwise reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3Representatives.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form Closing Date and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof any Option Closing Date: (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, thereto and the Prospectus and any amendments or supplements thereto shall contain all statements that are required to be stated therein in accordance with the Pricing Disclosure PackageAct and the Regulations and in all material respects shall conform to the requirements of the Act and the Regulations, and, in their opinion, (A) (1) and neither the Registration Statement, as of Statement nor any post-effective amendment thereto nor the Effective Date, (2) the Prospectus, as of its date Prospectus and on the Delivery Date, any amendments or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not supplements thereto shall contain any untrue statement of a material fact and did not and do not or omit to state a any material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and ; (Bii) since the Effective Daterespective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, no event has occurred that should except as otherwise stated therein, there shall have been no material adverse change in the Business Conditions of Middlesex from that set forth therein, whether or not arising in a supplement or amendment to the ordinary course of business; (iii) since the respective dates as of which information is given in the Registration Statement, Statement and the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto, there shall have been no event or transaction, contract or agreement entered into by Middlesex or any of the Subsidiaries other than in the ordinary course of business and as set forth in the Registration Statement or Prospectus, that has not been, but would be required to be, set forth in the Registration Statement or Prospectus; (iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been so no material adverse change, loss, reduction, termination or non-renewal of any contract to which Middlesex or any of the Subsidiaries is a party, that has not been, but would be required to be set forthforth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against Middlesex or any of the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings (other than rate cases filed by Middlesex or its Subsidiaries) shall be pending or threatened against or directly affecting Middlesex or any of the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would materially adversely affect the Business Conditions of Middlesex.
(jf) The Underwriters Representatives shall have received an executed copy at the Closing Date and any Option Closing Date certificates of the Paying Agency AgreementChief Executive Officer and the Chief Financial Officer of Middlesex dated as of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the Representatives, individually and as representatives of the several Underwriters, to the effect that (i) the representations and warranties of Middlesex in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that Middlesex has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions set forth in Section 7 hereof have been satisfied.
(kg) Application At the time this Agreement is executed and at the Closing Date and any Option Closing Date the Representatives shall have been made received a letter, dated the date of delivery thereof, addressed to list the Notes Representatives, individually and as representatives of the several Underwriters, in form and substance satisfactory to the Representatives in all respects (including, without limitation, the non-material nature of the changes or decreases, if any, referred to in clause (iii) below) from Deloitte & Touche LLP:
(i) confirming they are independent certified public accountants within the meaning of the Act and the Regulations, and stating that the section of the Registration Statement under the caption “Experts” is correct insofar as it relates to them;
(ii) stating that, in their opinion, the consolidated financial statements, schedules and notes of Middlesex audited by them and included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act and the Regulations;
(iii) stating that, on the NYSE for trading on such exchange andbasis of specified procedures, in connection therewith, which included a reading of the Company shall have caused to be prepared and submitted to the NYSE a listing application latest available unaudited interim consolidated financial statements of Middlesex (with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any an indication of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited available unaudited interim financial statements included or incorporated by reference in statements), a reading of the most recent Preliminary Prospectusminutes of the meetings of the stockholders and the Boards of Directors of Middlesex and the Subsidiaries and the Audit, any loss or interference with its Capital Improvement, Compensation, Corporate Governance, Nominating and Pension Committees of such Boards and inquiries to certain officers and other employees of Middlesex and the Subsidiaries responsible for operational, financial and accounting matters and other specified procedures and inquiries, nothing has come to their attention that would cause them to believe that at a specified date not more than five business from firedays prior to the date of such letter, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been was any change in the capital stock or (other than (1) the issuance of Common Stock upon the exercise of currently outstanding options and warrants as described in the Prospectus, (2) the grant of options to purchase Common Stock under Middlesex’s currently outstanding stock options plans and the issuance of Common Stock upon the exercise thereof, (3) the issuance of Common Stock under Middlesex’s Dividend Reinvestment Plan and 401(k) Plan and (4) the issuance of Common Stock under Middlesex’s Restricted Stock Plan), increase in long-term debt of the Parent Guarantor Middlesex or any decrease in consolidated net current assets or stockholders equity of its subsidiariesMiddlesex as compared with the amounts shown in the December 31, including 2002 audited balance sheets of Middlesex included in the CompanyRegistration Statement or that for the periods from December 31, 2002 to the date of the latest available unaudited financial statements of Middlesex, if any, and to a specified date not more than five days prior to the date of the letter, there were any decreases, as compared to the corresponding periods in the prior year, in operating income or total or per share amounts of net income, except in all instances for changes, decreases or increases that the Registration Statement discloses have occurred or may occur and except for such other changes, decreases or increases which the Underwriters shall in their sole discretion accept.
(iv) stating that they have compared specific dollar amounts (or percentages derived from such dollar amounts), numbers of shares and other numerical data and financial information set forth in the Registration Statement that have been reasonably specified by the Representatives prior to the date of this Agreement (in each case to the extent that such dollar amounts, percentages and other information is derived from the general accounting records subject to the internal controls of Middlesex’s or the Subsidiaries’ accounting systems, or any changehas been derived directly from such accounting records by analysis or comparison or has been derived from other records and analyses maintained or prepared by Middlesex or the Subsidiaries) with the results obtained from the application of readings, or any development involving a prospective changeinquiries and other appropriate procedures set forth in the letter, and found them to be in or affecting agreement. All financial statements and schedules included in material incorporated by reference into the condition Prospectus shall be deemed included in the Registration Statement for purposes of this subsection.
(financial or otherwise)h) All corporate and other proceedings and other matters incident to the authorization, results form and validity of operations, stockholders’ equity, properties, management, business or prospects this Agreement and the form of the Parent Guarantor Registration Statement and its subsidiaries, including Prospectus and all other legal matters related to this Agreement and the Company, taken as a whole, transactions contemplated hereby shall be reasonably satisfactory in all respects to counsel to the effect of which, in any Underwriters. Middlesex shall have furnished to such case described in clause counsel all documents and information that they shall have reasonably requested to enable them to pass upon such matters.
(i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered The Shares shall have been included for quotation on the Delivery Date on the terms and in the manner contemplated in the ProspectusNasdaq National Market.
(nj) Since At the date hereofClosing Date and any Option Closing Date, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, Representatives shall have been suspended or materially limited or the settlement of furnished such trading generally additional documents, information and certificates as they shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectusreasonably requested. All such opinions, letterscertificates, evidence letters and certificates mentioned above or elsewhere in this Agreement documents shall be deemed to be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance reasonably satisfactory to counsel for the Representatives and the Underwriters’ counsel. Middlesex shall furnish the Representatives with such conformed copies of such opinions, certificates, letters and other documents as they shall reasonably request. If any condition to the Underwriters’ obligations hereunder to be fulfilled prior to or at the Closing Date or any Option Closing Date, as the case may be, is not fulfilled, the Representatives may on behalf of the several Underwriters, terminate this Agreement with respect to the Closing Date or such Option Closing Date, as applicable, or, if they so elect, waive any such conditions which have not been fulfilled or extend the time for their fulfillment. Any such termination shall be without liability of the Underwriters to Middlesex.
Appears in 2 contracts
Samples: Underwriting Agreement (Middlesex Water Co), Underwriting Agreement (Middlesex Water Co)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Selling Stockholder contained herein, to the performance by each of the Company and the Parent Guarantor Selling Stockholder of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 . The Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified . If the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of any objection to the use of the form of the Registration Statementthis Agreement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) Squire Xxxxxx & Bird Xxxxx (US) LLP shall have furnished to the Representative Representatives its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, Exhibit C.
(e) Xxxx Xxxxxxx LLP shall have furnished to the Representative his Representatives its written opinion, at as counsel to the request of the Company and the Parent GuarantorSelling Stockholder, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4Representatives.
(f) The Representative Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG Deloitte & Touche LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG Deloitte & Touche LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial OfficerOfficer as to such matters as the Representatives may reasonably request, in the case of the Parent Guarantorincluding, stating thatwithout limitation, a statement:
(i) The representations, That the representations and warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No That 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 personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and;
(iii) They That they have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth; and
(iv) To the effect of Section 9(l) (provided that no representation with respect to the judgment of the Representatives need be made) and Section 9(m).
(j) The Underwriters Selling Stockholder shall have received an executed copy 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 and warranties of the Paying Agency AgreementSelling Stockholder contained herein are true and correct on and as of such Delivery Date and that the 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.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes[Intentionally Omitted].
(li) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither Except as described in the Parent Guarantormost recent Preliminary Prospectus, neither the Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its 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 decree, or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), 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 public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(om) Subsequent to the execution and delivery of this Agreement, to the extent applicable, (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(n) 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 NYSE Commission under Section 6 of the Exchange Act (including the New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market or in the over-the-counter marketThe NASDAQ Capital Market), or (B) trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such)) or any other calamity or crisis, either within or outside the United States, as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(o) The New York Stock Exchange shall have approved the Stock for listing, subject only to official notice of issuance.
(p) The Lock-Up Agreements between the Representatives and the officers, directors and stockholders of the Company set forth on Schedule II, 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 or prior to each Delivery Date, the Company shall have furnished to the Underwriters such further certificates and documents as the 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 2 contracts
Samples: Underwriting Agreement, Underwriting Agreement (Advanced Drainage Systems, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder are subject to the accuracy, when made and on the Delivery Date, accuracy of the representations and warranties of the Company contained herein when made and as of the Parent Guarantor contained hereinApplicable Time and on such Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with Registration Statement has become effective under the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been madeSecurities Act, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the any Registration Statement or any part thereof, preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any Issuer Free Writing Prospectus part thereof shall have been issued and no proceeding proceedings for that purpose or examination for such purpose pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the Commission; any request , and all requests for additional information on the part of the Commission for inclusion of additional information (to be included in the each Registration 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, 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 the Commission FINRA shall not have notified the Company of any raised no objection to the use fairness and reasonableness of the form terms of this Agreement or the Registration Statementtransactions contemplated hereby.
(b) No Underwriter None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Delivery such Closing Date that the any Registration Statement, the Prospectus or the Pricing Disclosure Package, Statement or any amendment or supplement thereto, thereto contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state a 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 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 SecuritiesStock, the any Registration Statement, the Pricing Prospectus and any Issuer Free Writing Prospectus, 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 and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Skadden, Arps, Slate, Mxxxxxx & Bird Fxxx LLP shall have furnished to the Representative its such counsel’s written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the Delivery such Closing Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx MxXxxxxxx Will & Xxxxxxxx Exxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery such Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related such matters as the Representative Underwriters may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gf) At the time of the execution of this Agreement, the Representative shall have received from KPMG LLP Rxxxxxxxx Kass a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof Representative (i) confirming that they are an independent public accountants registered accounting firm with respect to the Company 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 Rules and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, Regulations and PCAOB and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), stating the conclusions and findings of such firm with respect to firm, of the financial information regarding the Company and the Parent Guarantor and other matters type ordinarily covered by included in accountants’ “comfort letters” to Underwriters underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in connection with registered public offeringsthe Registration Statement, the Pricing Prospectus and the Prospectus.
(hg) With respect On the effective date of any post-effective amendment to any Registration Statement and on such the letter of KPMG LLP referred to in Section 7(g) aboveClosing Date, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative received a letter (the “bring-down KPMG letter”) of such accountants, from Rxxxxxxxx Kxxx addressed to the Underwriters and dated the Delivery such Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) statingconfirming, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the 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 KPMG letter), the conclusions and findings of such firm firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information regarding the Parent Guarantor and other matters covered by its letter delivered to the initial KPMG letter and Representative concurrently with the execution of this Agreement pursuant to paragraph (iiif) confirming in all material respects the conclusions and findings set forth in the initial KPMG letterof this Section 6.
(ih) Each of the The Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery such Closing Date, of a director, in the case its Chairman of the Company, Board or President and the Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
that (i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They officers have carefully examined the Registration Statement, the Pricing Prospectus and the Pricing Disclosure Package, Prospectus and, in their opinion, (A) (1) the each Registration StatementStatement and each amendment thereto, as of the Effective Date, (2) the Prospectus, their respective effective dates and as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, such Closing Date did not and do not contain include any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in not misleading, and the case Pricing Prospectus, as of the Registration StatementApplicable Time and as of such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of 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 under in which they were made) , not misleading, (ii) to the best of their knowledge after reasonable investigation, as of 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 such Closing Date, and (Biii) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that there has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made been, subsequent to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest most recent audited financial statements included or incorporated by reference in the most recent Preliminary Pricing Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any material adverse change in the capital stock financial position or long-term debt results of the Parent Guarantor or any operations of its subsidiaries, including the Company, or any changechange or development that, singularly or any development involving 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, stockholders’ equitybusiness, properties, management, business assets or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken except as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated set forth in the Prospectus.
(ni) Since 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 date hereof, there shall not have occurred any downgrading with respect to any debt securities issuance or sale of the Parent Guarantor Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or the Sponsor; and no injunction, restraining order or order of any other nature by any federal or state court of its subsidiaries, including 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, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(oj) On the Effective Date, the Company shall have delivered to the Representative executed copies of the 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, Agreement there shall not have occurred any of the following: (i) trading in securities generally on the NYSE New York Stock Exchange or the Nasdaq Global Market or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted 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 New York state authorities or European Union authoritiesa material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, or the subject of a material act of terrorism, or there shall have been an outbreak of or material escalation in hostilities involving a member state of the European Union or the United States States, or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof conditions (or the effect of international conditions on the financial markets in the European Union or United States shall be such), ) as to make it, in the reasonable judgment of the Representative, impracticable or inadvisable to proceed with the public offering sale or delivery of the Securities being delivered on the Delivery Date Stock on the terms and in the manner contemplated in the Pricing Prospectus and the Prospectus.
(l) The Exchange shall have approved the Stock for listing therein, subject only to official notice of issuance and evidence of satisfactory distribution.
(m) Cxxxx shall have received on and as of such Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing as a foreign entity in such other jurisdictions as Cxxxx may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(n) On or prior to such Closing Date, the Company shall have furnished to Cxxxx such further certificates and documents as 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 obligation of each Underwriter to purchase and pay for the Underwriters Firm Shares that it has agreed to purchase hereunder are on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, the Closing Date and any Option Closing Date to the accuracy, when made continuing accuracy and on the Delivery Date, fulfillment of the representations and warranties of the Company and the Parent Guarantor contained hereinBCB, to the performance by each of the Company and the Parent Guarantor BCB of its covenants and obligations hereunder, and to each of the following additional terms and conditions:
(a) The If required by the Regulations, the Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared SEC pursuant to Section 5(a)(iRule 424(b) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to the Closing Date or any Option Closing Date, as the case may be, no stop order or other order preventing or suspending the effectiveness of the Registration Statement or preventing or suspending the use sale of any of the Prospectus or any Issuer Free Writing Prospectus Shares shall have been issued under the Act or any state or foreign securities law, and no proceeding or examination proceedings for such that purpose shall have been initiated or threatened shall be pending or, to the Representatives' knowledge or the knowledge of BCB, shall be contemplated by the Commission; SEC or by any authority in any jurisdiction designated by the Representatives pursuant to Section 5(f) hereof. Any request on the part of the Commission SEC or any state or foreign securities authority for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection with to the use reasonable satisfaction of counsel for the form of the Registration StatementUnderwriters.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, Shares and the form of the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor . BCB shall have furnished to such counsel all documents and information that they may have reasonably request requested to enable them to pass upon such matters. The Representatives shall have received from the Underwriters' counsel, Xxxxx, Xxxx, Xxxxxxx & Xxxxxxx L.L.P., an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Representatives individually and as representative of the several Underwriters, which opinion shall be satisfactory in all respects to the Representatives.
(c) The Representatives shall have received a copy of an executed Lock-up Agreement from each person listed on Schedule II hereto.
(d) Xxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative Representatives shall have received at or prior to the Closing Date from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such ' counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a lettermemorandum or summary, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (orRepresentatives, with respect to matters involving changes the qualification for offering and sale by the Underwriters of the Shares under the securities or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 Blue Sky laws of such firm with respect jurisdictions designated by the Representatives pursuant to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offeringsSection 5(f) hereof.
(he) With respect to On the letter of KPMG LLP referred to in Section 7(g) aboveClosing Date and any Option Closing Date, and there shall have been delivered to the Representative concurrently with the execution Representatives signed opinions of this Agreement (the “initial KPMG letter”)Xxxxxxx & Xxx, the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) counsel for BCB, dated as of each such accountants, date and addressed to the Representatives individually and as representative of the several Underwriters to the effect set forth in Exhibit A hereto or to such effect as is otherwise reasonably satisfactory to the Representatives.
(f) At the Closing Date and dated the Delivery Date any Option Closing Date: (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, thereto and the Prospectus and any amendments or supplements thereto shall contain all statements that are required to be stated therein in accordance with the Pricing Disclosure PackageAct and the Regulations and in all material respects shall conform to the requirements of the Act and the Regulations, and, in their opinion, (A) (1) and neither the Registration Statement, as of Statement nor any post-effective amendment thereto nor the Effective Date, (2) the Prospectus, as of its date Prospectus and on the Delivery Date, any amendments or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not supplements thereto shall contain any untrue statement of a material fact and did not and do not or omit to state a any material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or ; (ii) since such date there shall not have been any change the respective dates as of which information is given in the capital stock Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or long-term debt of the Parent Guarantor or any of its subsidiariessupplements thereto, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken except as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilitiesotherwise stated therein, there shall have been an escalation no material adverse change in hostilities involving a member state the Business Conditions of BCB and the European Union Subsidiaries from that set forth therein, whether or not arising in the United States ordinary course of business; (iii) since the respective dates as of which information is given in the Registration Statement and the Prospectus or any amendment or supplement thereto, there shall have been a declaration no event or transaction, contract or agreement entered into by BCB or either of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets its Subsidiaries other than in the European Union or United States shall be such), ordinary course of business and as to make it, set forth in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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.the
Appears in 2 contracts
Samples: Underwriting Agreement (BCB Financial Services Corp /Pa/), Underwriting Agreement (BCB Financial Services Corp /Pa/)
Conditions of Underwriters’ Obligations. The respective --------------------------------------- obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i5(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus part thereof shall have been issued and no proceeding or examination for such that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, Statement or the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, thereto contains an untrue statement of a fact which, that in the reasonable opinion of Xxxxx Xxxx Xxxxxx Xxxxxx & Xxxxxxxx LLPXxxxxxx, counsel for the Underwriters, is material or omits to state a fact which, that in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Xxxxxxxx Kill Xxxxx & Bird LLP Xxxxxxxx, P.C., as counsel to the Company, shall have furnished to the Representative Representatives its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantoropinion, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, effect set forth in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.A hereto:
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative Representatives shall have received from Xxxxx Xxxx Xxxxxx Xxxxxx & Xxxxxxxx LLPXxxxxxx, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they such counsel reasonably request for the purpose of enabling them it to pass upon such matters.
(gf) At the time of execution of this Agreement, the Representative Representatives shall have received from each of E&Y, KPMG LLP and AA a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “' "comfort letters” " to Underwriters underwriters in connection with registered public offerings.
(hg) With respect to the letter of each of E&Y, KPMG LLP and AA referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “"initial KPMG letter”"), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “"bring-down KPMG letter”") of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three five days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ih) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case its Chairman of the Company, Board and the Chief Executive Officer and the its Senior Vice President and Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, representations and warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 that are qualified with reference to a Material Adverse Effect or materiality are true and correct on and as of the such Delivery Date, ; and each the representations and warranties of the Company that are not so qualified shall be true and correct in all material respects, in each case as of such Delivery Date; the Parent Guarantor, as applicable, Company has complied in all material respects 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatenedherein; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment theretoconditions set forth in Sections 7(a) and 7(i) have been fulfilled in all material respects; and
(iiiii) They have carefully examined the Registration Statement, Statement and the Prospectus and the Pricing Disclosure Package, and, in their opinion, opinion (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date Registration Statement and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, Prospectus did not and do not contain include any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, Statement or the Prospectus or any Issuer Free Writing Prospectus that has not been so set forthProspectus.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(mi) Neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree decree, otherwise than as set forth or contemplated in the Prospectus or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, propertiesgeneral affairs, management, business financial position, stockholders' equity or prospects results of operations of the Parent Guarantor Company and its subsidiaries, including otherwise than as set forth or contemplated in the Company, taken as a wholeProspectus, the effect of which, in any such case described in clause (i) or (ii), is, in the reasonable judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(oj) Subsequent to the execution and delivery of this AgreementAgreement (i) no downgrading shall have occurred in 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, with possible negative implications, its rating of any of the Company's debt securities.
(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 NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal Federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United Untied States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof conditions (or the effect of international conditions on the financial markets in the European Union or United States shall be such), ) as to make it, in the reasonable judgment of a majority in interest of the Representativeseveral Underwriters, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(l) The Nasdaq National Market shall have approved the Stock for inclusion, subject only to official notice of issuance and evidence of satisfactory distribution. 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 (Coinmach Corp), Underwriting Agreement (Coinmach Laundry Corp)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company BreitBurn Parties and the Parent Guarantor Selling Unitholder contained herein, to the performance by each of the Company BreitBurn Parties and the Parent Guarantor Selling Unitholder of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Partnership shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company Partnership on or prior to the such Delivery Date that the Registration Statement, as of the latest Effective Date, any Preliminary Prospectus or the Prospectus as of its respective date and on the applicable Delivery Date or the Pricing Disclosure PackagePackage as of the Applicable Time, or in each case including any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for the Underwriters, is material or omits to state 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 misleadingmisleading (in the case of any Preliminary Prospectus, the Prospectus or the Pricing Disclosure Package, in the light of the circumstances under which such statements were made).
(c) All corporate corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesUnits, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to Xxxxx Xxxxx L.L.P., counsel for the Underwriters, and the Company and the Parent Guarantor Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP Xxxxxx L.L.P. shall have furnished to the Representative Representatives its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorPartnership, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibits A-1 and A-2. R. Exhibit A.
(e) Xxxx Xxxxxx Xxxxxxx & Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent GuarantorPLC, shall have furnished to the Representative his Representatives its written opinion, at as local Michigan counsel to the request BreitBurn Entities organized under the laws of the Company and the Parent GuarantorState of Michigan, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeInitial Purchasers, substantially in the form attached hereto as Exhibit A-3.B.
(ef) Xxxxxx & Xxxxxxxxx X.X. Xxxxxxx X. Xxxxx, the General Partner’s Executive Vice President and General Counsel, shall have furnished to the Representative its Representatives his written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibit A-4.C.
(fg) Xxxxx Xxxx & Xxxxxxxx, LLP shall have furnished to the Representatives its written opinion, as counsel to the Selling Unitholder, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit D.
(h) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gi) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 under the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardSecurities Act, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary ProspectusPricing Disclosure Package, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and (iii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hj) With respect to the letter of KPMG PricewaterhouseCoopers LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Underwriters concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Partnership shall have furnished to the Representative Representatives a “bring-down” letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of under the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardSecurities Act, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(k) At the time of execution of this Agreement and the Closing Date, the Underwriters shall have received from each of the Reserve Engineers a letter, in form and substance satisfactory to the Representatives confirming certain matters concerning their engagement and the use of their Reserve Reports and information derived from their Reserve Reports in the Pricing Disclosure Package and the Preliminary Prospectus.
(l) Except as described in the Pricing Disclosure Package, (i) none of the BreitBurn Entities shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, any loss or interference with its respective 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 (ii) and, since such date, there shall not have been any change in the capitalization or long-term debt of any of the BreitBurn Entities or any change in or affecting the condition (financial or otherwise), results of operations, unitholders’ equity, properties, management or business of the BreitBurn Entities taken as a whole, the effect of which, in any such case described in clause (i) or (ii) is, individually or in the aggregate, in the judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Units being delivered on such Delivery Date on the terms and in the manner contemplated in the Pricing Disclosure Package.
(m) Each of the Company and the Parent Guarantor BreitBurn Parties shall have furnished or caused to be furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case of the Company, and signed on its behalf by the Chief Executive Officer and the Chief Financial Officer, in the case Officer of the Parent GuarantorGeneral Partner, stating or other officers satisfactory to the Representatives, as to such matters as the Representatives may reasonably request, including, without limitation, a statement that:
(i) The representations, representations and warranties and agreements of the Company and the Parent Guarantor, as applicable, BreitBurn Parties in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has BreitBurn Parties have complied with all its their agreements contained herein and satisfied all the conditions on its their part to be performed or satisfied hereunder at or prior to the such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, Partnership of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the latest Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the latest Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(jn) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted Subsequent to the NYSE a listing application with respect to earlier of (A) the Notes.
Applicable Time and (lB) The Securities shall be eligible for clearance the execution and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantordelivery of this Agreement, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, no downgrading shall have occurred in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to rating accorded any debt securities or preferred stock issued or guaranteed by any of the Parent Guarantor or any of its subsidiaries, including the Company, BreitBurn Entities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62by the Commission for purposes of Rule 436(g)(2) of under the Exchange Act or any public announcement that any Securities Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review review, or has changed its outlook with respect to, its rating of any debt securities or preferred stock issued or guaranteed by any of the BreitBurn Entities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(o) 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 NYSE 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 the Parent Guarantor Partnership on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the ProspectusPricing Disclosure Package.
(p) The Lock-Up Agreements from the persons or entities listed in Schedule VI and set forth in Exhibit E hereto shall be in full force and effect on such Delivery Date.
(q) The Selling Unitholder shall have furnished to the Representatives a certificate, dated such Delivery Date, signed on its behalf by an executive officer of the Selling Unitholder, as to such matters as the Representatives may reasonably request, including, without limitation, a statement that the representations and warranties of the Selling Unitholder in Section 2 are true and correct on and as of such Delivery Date, and the Selling Unitholder 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.
(r) On or prior to each Delivery Date, the BreitBurn Parties and the Selling Unitholder shall have furnished to the Underwriters such further certificates and documents as the 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 counsel for the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (BreitBurn Energy Partners L.P.), Underwriting Agreement (Quicksilver Resources Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made on the date hereof and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Xxxxxxxx Parties contained herein, to the performance by each the Xxxxxxxx Parties of the Company and the Parent Guarantor of its their obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Partnership shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, 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 any request of the Commission for inclusion of additional information in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company Partnership of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company Partnership on or prior to the such Delivery Date that the Registration Statement, any Preliminary Prospectus, 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 Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, is material or omits to state a fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleadingmisleading (in the case of any Preliminary Prospectus, the Prospectus or the Pricing Disclosure Package, in light of the circumstances under which such statements were made).
(c) All corporate corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesUnits, the Registration Statement, any Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor Xxxxxxxx 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) Xxxxxx Xxxxxx, Xxxx & Bird Xxxxxxxx LLP shall have furnished to the Representative its Representatives their written opinion and its 10b-5 negative assurance letter, as U.S. counsel to the Company and the Parent GuarantorXxxxxxxx Parties, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Representatives.
(e) Xxxxxxx Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, LLP shall have furnished to the Representative his Representatives their written opinion, at as counsel to the request of the Company and the Parent GuarantorXxxxxxxx Parties, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially with respect to the matters set forth in the form attached hereto as Exhibit A-3B to this Agreement.
(ef) Xxxxxx & Xxxxxxxxx X.X. The Representatives shall have furnished to the Representative its written opinionreceived from Xxxxx X. Xxxxxx, as Luxembourg internal counsel to the CompanyPartnership, his written opinion and negative assurance statement, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4Representatives.
(fg) The Representative Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx LLPXxxxxxx L.L.P., counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the most recent Preliminary Prospectus, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor Xxxxxxxx Parties shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gh) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG Ernst & Young LLP a letterletter or letters, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hi) With respect to the letter or letters of KPMG Ernst & Young LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Partnership shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ij) Each of On each Delivery Date, the Company and the Parent Guarantor General Partner shall have furnished to the Representative Representatives a certificatecertificate of the General Partner, signed by an executive officer of the General Partner, dated the such Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, Xxxxxxxx Parties contained in Section 1 of this Agreement are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has Xxxxxxxx Parties have complied with all its of their agreements contained herein and satisfied all the conditions on its their part to be performed or satisfied hereunder at or prior to the such Delivery Date;
(ii) No the Prospectus has been timely filed with the Commission in accordance with Section 5(a)(i) of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficer, threatenedthreatened by the Commission; all requests of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise has been complied with; and the Commission has not notified the Company or the Parent Guarantor, as applicable, Partnership of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined since the respective dates as of which information is given in the Registration Statement, the Prospectus Pricing Disclosure Package and the Pricing Disclosure PackageProspectus (exclusive of any amendment or supplement thereto), andthere has been no material adverse change or any development that would reasonably be expected to result in a prospective material adverse change in the financial condition, in their opinionearnings, (A) (1) the Registration Statement, as business or operations of the Effective DateGeneral Partner, the Partnership and its subsidiaries (2taken as a whole) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred from that should have been set forth in a supplement or amendment to contemplated in the Registration Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any amendment or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.supplement thereto);
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since Since the date of the latest audited most recent financial statements included or incorporated by reference in the most recent Preliminary Prospectus and the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving that would reasonably be expected to result in a prospective change, in or affecting the condition (financial or otherwise)condition, results of operations, stockholders’ equity, properties, managementearnings, business or prospects operations of the Parent Guarantor and its subsidiaries, including the Company, Partnership Entities (taken as a whole) from that set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), which is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(nl) Since Subsequent to the date hereof, there execution and delivery of this Agreement (i) no downgrading shall not have occurred any downgrading with respect to any in the rating accorded the Partnership’s debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” (as such that term is defined in Section 3(a)(62by the Commission for purposes of Rule 436(g)(2) of the Exchange Act or any public announcement that any Rules and Regulations), and (ii) no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any of the Partnership’s debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)securities.
(om) 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 NYSE, NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange Alternext US or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Partnership on any exchange or in the over-the-counter market shall have been suspended or limited or the settlement of such trading shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (iii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iiiiv) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (ivv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), in the case of clauses (iv) and (v), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the ProspectusProspectus (exclusive of any amendment or supplement thereto).
(n) The NYSE shall have approved the Units for listing, subject only to official notice of issuance.
(o) The Lock-Up Agreements among the Representatives and the persons and entities set forth on Schedule 2, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(p) The Xxxxxxxx Parties shall have furnished the Representatives such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, letters, documents, 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 (Williams Partners L.P.), Underwriting Agreement (Williams Partners L.P.)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i)) of this Agreement; all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter The Underwriters shall not have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx K&L Gates LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesUnits (and the securities comprising the Units), the Underwriters’ Warrants, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Xxxxx & Bird Xxxxxxxxx, LLP shall have furnished to the Representative Underwriters its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3Underwriters.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Underwriters shall have received from KPMG Cross, Xxxxxxxxx & Xxxxx, LLP a letter, in form and substance satisfactory to the RepresentativeUnderwriters, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hf) With respect to the letter of KPMG Cross, Xxxxxxxxx & Xxxxx, LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Underwriters concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Underwriters a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardX, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ig) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Underwriters a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 of this Agreement are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(jh) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall not have sustained, since the date of the latest audited financial statements included in, or incorporated by reference in in, the most recent Preliminary Prospectus, (a) 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 decree, or (iib) since such date there shall not have been any change in the capital stock stock, long-term debt, net current assets or longshort-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, Company or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the reasonable judgment of the RepresentativeUnderwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(oi) 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 NYSE any national securities exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the reasonable judgment of the RepresentativeUnderwriters, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(j) The NASDAQ Market shall have approved the Common Stock comprising part of the Units and the Common Stock issuable upon exercise of the Unit Warrants and the Underwriters’ Warrants for inclusion, subject only to official notice of issuance and evidence of satisfactory distribution.
(k) The Lock-Up Agreements between the Underwriters and the officers and directors of the Company set forth on Schedule 2 attached hereto, delivered to the Underwriters on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(l) At each Closing Date, K&L Gates LLP, counsel for the Underwriters, shall have been furnished with such information, certificates and documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Units 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 Units 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 2 contracts
Samples: Underwriting Agreement (Lightpath Technologies Inc), Underwriting Agreement (Lightpath Technologies Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Selling Stockholders contained hereinherein in all material respects (except for such representations and warranties as are already qualified by materiality concepts, which shall be accurate when made and on each Delivery Date), to the performance by each of the Company and the Parent Guarantor Selling Stockholders of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus part thereof shall have been issued and no proceeding or examination for such that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, Statement or 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 Pxxx, Weiss, Rifkind, Wxxxxxx & Xxxxxxxx Gxxxxxxx LLP, counsel for the Underwriters, is material or omits to state a fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesCustody Agreements and Powers of Attorney, the Stock, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) Xxxxxx Pxxxxxx Xxxxx & Bird Exxxx LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative Representatives its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the such Delivery Date, in the form attached as Exhibit 9(d) hereto and substance reasonably satisfactory Fox Mandal & Associates shall have furnished to the RepresentativeRepresentatives its written opinion, substantially as special India counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in a form reasonably acceptable to the Representatives.
(e) Cxxxxxxx Chance US LLP shall have furnished to the Representatives its written opinion, as counsel to each of the Selling Stockholders except for UBS Capital II LLC, addressed to the Underwriters and dated such Delivery Date, in the form attached as Exhibit 9(e) hereto.
(f) Kxxx Xxxxxxx LLP, counsel to UBS Capital II LLC, and internal counsel of UBS Capital II LLC, shall have furnished to the Representatives their written opinions addressed to the Underwriters and dated such Delivery Date, in the forms attached hereto as Exhibit A-4Exhibits 9(f)-I and 9(f)-II, respectively.
(fg) The Representative Representatives shall have received from Xxxxx Xxxx Pxxx, Weiss, Rifkind, Wxxxxxx & Xxxxxxxx Gxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gh) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG PricewaterhouseCoopers LLP (Stamford, Connecticut) a letter, in form and substance satisfactory to the RepresentativeRepresentatives and PricewaterhouseCoopers LLP (Stamford, Connecticut), addressed to the Underwriters and Underwriters, dated the date hereof (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 and are an independent (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 Prospectus, as of a date not more than five 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 accounting firm offerings. This letter will cover, among other things, the types of matters and be prepared in accordance with Statement of Auditing Standards No. 72 (or any successor standards), with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement.
(i) At the time of execution of this Agreement, the Representatives shall have received from PricewaterhouseCoopers LLP (Los Angeles, California) a letter, in form and substance satisfactory to the Representatives and PricewaterhouseCoopers LLP (Los Angeles, California), addressed to the Underwriters, dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the Public Company Accounting Oversight Board, applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings. This letter will cover, among other things, the types of matters and be prepared in accordance with Statement of Auditing Standards No. 72 (or any successor standards), with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement.
(hj) With respect to the letter of KPMG PricewaterhouseCoopers LLP (Stamford, Connecticut) referred to in Section 7(gparagraph (h) aboveand the letter of PricewaterhouseCoopers LLP (Los Angeles, California) referred to in paragraph (i) and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letterletters”), the Parent Guarantor Company shall have furnished to the Representative a letter Representatives letters (the “bring-down KPMG letterletters”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter letters (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three five days prior to the date of the bring-down KPMG letterletters), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letterletters.
(ik) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Representatives and the Selling Stockholders a certificate, dated the such Delivery Date, of a director, in the case its Chairman of the CompanyBoard, and the its President, Chief Executive Officer or a Vice President and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i1) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date in all material respects (except for such representations and warranties as are already qualified by materiality concepts, which shall be accurate as of such Delivery Date, and each of ); the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatenedherein; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment theretoconditions set forth in Sections 9(a) and 9(m) have been fulfilled; and
(iii2) They have carefully examined the Registration Statement, Statement and the Prospectus and the Pricing Disclosure Package, and, in their opinion, opinion (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date Registration Statement and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, Prospectus did not and do not contain include any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, Date no event has occurred that which should have been set forth in a supplement or amendment to the Registration Statement, Statement or the Prospectus or any Issuer Free Writing Prospectus that which has not been so set forth.
(jl) The Underwriters Each Selling Stockholder (or the Custodian or one or more attorneys-in-fact on behalf of the Selling Stockholders) shall have received an executed copy furnished to the Representatives on such Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, the Selling Stockholder (or the Custodian or one or more attorneys-in-fact) stating that the representations, warranties and agreements of the Paying Agency Agreement.
Selling Stockholder contained herein are true and correct as of such Delivery Date in all material respects (kexcept for such representations and warranties as are already qualified by materiality concepts, which shall be accurate as of such Delivery Date) Application shall have been made to list and that the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused Selling Stockholder has complied with all agreements contained herein to be prepared and submitted performed by the Selling Stockholder at or prior to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclearsuch Delivery Date.
(m) Neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, Prospectus (A) 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 decree, other than as set forth or contemplated in the Prospectus or (iiB) since such date date, there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (general affairs, management, financial or otherwise), results of operationsposition, stockholders’ equity, properties, management, business equity or prospects results of operations of the Parent Guarantor Company and its subsidiaries, including other than as set forth or contemplated in the Company, taken as a wholeProspectus, the effect of which, in any such case described in clause (iA) or (iiB), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(o) 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 NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially substantially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal Federal or New York any state or European Union authoritiesauthority, (iii) a member state of the European Union or the United States shall have become engaged in hostilitieshostilities (other than the military operations of the United States in Iraq), there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or there shall have occurred any other calamity or crisis or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof hereof, (or the effect of international conditions on the financial markets in the European Union or United States shall be such), ) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(o) The Nasdaq National Market System shall have approved the Stock for inclusion, subject only to official notice of issuance and evidence of satisfactory distribution. 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 (Greenfield Online Inc), Underwriting Agreement (Greenfield Online Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i5(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus part thereof shall have been issued and no proceeding or examination for such that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have been advised by the Company nor shall it have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, Statement or the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, thereto contains an untrue statement of a fact which, in your opinion or in the opinion of Xxxxx Xxxx & Xxxxxxxx LLPXxxxxxx and Xxxxxx, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesShares, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Xxxxxxxx & Bird LLP Xxxxx shall have furnished to the Representative Underwriters its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company Company, addressed to the Underwriters and dated the Parent GuarantorDelivery Date, substantially in the form attached hereto as Exhibit A. In rendering such opinion, such counsel may rely as to matters of Maryland law on the opinion of Xxxxxx, Feinblatt, Rothman, Hoffberger & Xxxxxxxxx, LLC, and as to the compliance as to form of the registration statement on Form S-3 (Registration No. 333-49359) and any reports under the Exchange Act incorporated therein which were filed prior to the filing of the Company's Form 10-K for the year ended December 31, 1998, upon the opinion of Ungaretti & Xxxxxx, which opinions shall be in form and substance satisfactory to counsel for the Underwriters, PROVIDED that such counsel shall state that it believes that both the Underwriters and it are justified in relying upon such opinions. Such counsel shall also have furnished to the Underwriters a written statement, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially in to the forms attached hereto effect that no facts have come to the attention of such counsel which lead it to believe that the Registration Statement, as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent GuarantorEffective Date and as of the Delivery Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus, as of the Delivery Date and at the time such Prospectus was issued, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; such statement need not address the financial statements and data included therein or omitted therefrom.
(e) Xxxxxxx and Xxxxxx shall have furnished to the Representative his Underwriters its written opinion, at as counsel to the request of the Company and the Parent GuarantorUnderwriters, addressed to the Underwriters and dated the Delivery Date, in form and substance satisfactory to the Underwriters. In giving its opinion, Xxxxxxx and Xxxxxx may rely as to matters of Maryland law on the opinion of Xxxxxx, Feinblatt, Rothman, Hoffberger & Xxxxxxxxx, LLC which opinion shall be in form and substance reasonably satisfactory to counsel for the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Underwriters. Xxxxxxx and Xxxxxx & Xxxxxxxxx X.X. shall also have furnished to the Representative its Underwriters a written opinion, as Luxembourg counsel to the Companystatement, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially to the effect that no facts have come to the attention of such counsel which lead it to believe that the Registration Statement, as of the Effective Date and as of the Delivery Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the forms attached hereto statements therein not misleading, or that the Prospectus, as Exhibit A-4of the Delivery Date and at the time such Prospectus was issued, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; such statement need not address the financial statements and data included therein or omitted therefrom.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative Underwriters a letter (the “bring"BRING-down KPMG letter”DOWN LETTER") of such accountantsPricewaterhouseCoopers L.L.P., addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given or incorporated by reference in the Prospectus, as of a date not more than three five days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by its letter (the initial KPMG letter "INITIAL LETTER") delivered to the Underwriters concurrently with the execution of this Agreement and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ig) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Underwriters a certificate, dated the Delivery Date, of a director, in the case its Chairman of the CompanyBoard, its President or a Vice President and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, its chief financial officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of ; the Company and the Parent Guarantor, as applicable, has complied with all its agreements contained herein herein; and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Delivery Dateset forth in Sections 7(a) and 7(h) have been fulfilled;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; issued and, to the best of each such officer's knowledge, no proceedings or examination proceeding for that purpose is pending or threatened by the Commission;
(iii) All filings required by Rule 424(b) of the Rules and Regulations have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment theretomade; and
(iiiiv) They have carefully examined the Registration Statement, Statement and the Prospectus and the Pricing Disclosure Package, and, in their opinion, opinion (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date Registration Statement and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, Prospectus did not and do not contain include any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, Date no event has occurred that which should have been set forth in a supplement or amendment to the Registration Statement, Statement or the Prospectus or any Issuer Free Writing Prospectus that which has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(mi) Neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, Prospectus any loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree decree, otherwise than as set forth or contemplated in the Prospectus; (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, propertiesgeneral affairs, management, business financial position, stockholders' equity or prospects results of operations of the Parent Guarantor Company and its subsidiaries, including otherwise than as set forth or contemplated in the CompanyProspectus, taken as a wholeor (iii) trading in the Common Shares has not been suspended by the Commission or the New York Stock Exchange, the effect of which, in any such case described in clause (i), (ii) or (iiiii), is, in the judgment of the RepresentativeUnderwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Shares being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(oi) 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 NYSE New York Stock Exchange, the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, market shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any either of such exchange exchanges or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal Federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof conditions (or the effect of international conditions on the financial markets in the European Union or United States shall be such) as, in the case of clause (v), as to make it, in the judgment of the RepresentativeXxxxxx Brothers Inc., impracticable impractical or inadvisable to proceed with the public offering or delivery of the Securities Shares being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(j) The New York Stock Exchange shall have approved the Shares for listing, subject only to official notice of issuance. 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. The Company shall furnish to you conformed copies of such opinions, certificates, letters and other documents in such number as you shall reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, the Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Delivery Date, by you. Any such cancellation shall be without liability of the Underwriters to the Company. Notice of such cancellation shall be given the Company in writing, or by telegraph or telephone and confirmed in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Centerpoint Properties Trust)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Operating Partnership contained herein, to the performance by each of the Company and the Parent Guarantor Operating Partnership of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 . The Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 or pursuant to Section 8A of the Securities Act shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, which is material or omits to state a fact which, in the opinion of such counselUnderwriter, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor Operating Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird Xxxxx Lovells US LLP shall have furnished to the Representative Representatives (i) its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorOperating Partnership, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibits A-1 and A-2. R. Xxxxx XxxxxxExhibit B-1, Vice President—Business Strategy and General Counsel of the Parent Guarantor(ii) its written negative assurance letter, shall have furnished as counsel to the Representative his written opinion, at the request of the Company and the Parent GuarantorOperating Partnership, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the form attached hereto as Exhibit A-3.
B-2 and (eiii) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg tax counsel to for the CompanyCompany and the Operating Partnership, regarding certain U.S. federal income tax matters, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibit A-4B-3.
(fe) The Representative Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx LLPXxxxxx L.L.P., counsel for the Underwriters, (i) an opinion, dated such opinion Delivery Date, in form and 10b-5 substance reasonably satisfactory to the Underwriters and (ii) a negative assurance letter, dated the such Delivery Date, with respect in form and substance reasonably satisfactory to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably requireUnderwriters, and the Company and the Parent Guarantor Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gf) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hg) With respect to the letter of KPMG LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ih) Each of the Company and the Parent Guarantor Operating Partnership shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, Date and signed by an executive officer of a director, in the case each of the Company, Company and the Chief Executive Officer and Operating Partnership, as applicable, as to such matters as the Chief Financial OfficerRepresentatives may reasonably request, in the case of the Parent Guarantorincluding, stating thatwithout limitation, a statement:
(i) The That the representations, warranties and agreements of the Company and the Parent GuarantorOperating Partnership, as applicable, contained in Section 1 this Agreement are true and correct on and as of the such Delivery Date, and each of the Company and the Parent GuarantorOperating Partnership, as applicable, has complied with all of its respective agreements contained herein and satisfied all the conditions on its respective part to be performed or satisfied hereunder at or prior to the such Delivery Date;
(ii) No That no stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose or pursuant to Section 8A of the Securities Act have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has shall not have notified the Company or the Parent GuarantorOperating Partnership, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and;
(iii) They That they have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.; and
(jiv) The Underwriters shall have received an executed copy To the effect of the Paying Agency Agreement.
Section 7(i) hereof (k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application provided that no representation with respect to the Notesjudgment of the Representatives need be made) and Section 7(j) hereof.
(li) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
Except as described in the most recent Preliminary Prospectus, (mi) Neither neither the Parent GuarantorCompany, nor any of its subsidiaries, including nor, to the Companyknowledge of the Company or the Operating Partnership, any of the Acquired Properties shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its 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 decree, or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a wholewhole or, to the knowledge of the Company or the Operating Partnership, the Acquired Properties, the effect of which, in any such case described in clause (i) or (ii), 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 public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(nj) Since Subsequent to the date hereof, there execution and delivery of this Agreement (i) no downgrading shall not have occurred any downgrading with respect to any in the rating accorded the Company’s debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, preferred stock by any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) of the Exchange Act or any public announcement that any Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any of the Company’s debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)or preferred stock.
(ok) Subsequent to the execution and delivery of this Agreement, 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 NYSE Commission under Section 6 of the Exchange Act (including the Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market or in the over-the-counter marketThe NASDAQ Capital Market), or (B) trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such)) or any other calamity or crisis within the United States, as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus. All opinions.
(l) The Exchange shall have approved the Stock for listing, letterssubject only to official notice of issuance.
(m) The Lock-Up Agreements between the Representatives and the officers and directors of the Company set forth on Schedule IV, evidence and certificates mentioned above delivered to the Representatives on or elsewhere in before the date of this Agreement Agreement, shall be deemed to be in compliance with the provisions hereof only if they are in form full force and substance reasonably satisfactory to counsel for the Underwriterseffect on such Delivery Date.
Appears in 1 contract
Samples: Underwriting Agreement (Four Corners Property Trust, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor OMNI Geophysical contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); 5(a) hereof, the Registration Statement and all post- effective amendments to the Registration Statement shall have become effective, all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 424 and Rule 430A of the Rules and Regulations shall have been made, made and no such filings shall have been made without the consent of the RepresentativeRepresentatives; no stop order suspending the effectiveness of the Registration Statement or preventing any amendment or supplement thereto or suspending the use qualification of the Prospectus Shares for offering or sale in any Issuer Free Writing Prospectus jurisdiction shall have been issued and issued; no proceeding or examination proceedings for the issuance of any such purpose order shall have been initiated or threatened by the Commissionthreatened; and any request of the Commission for inclusion of additional information (to be included in the Registration Statement or the Prospectus or otherwise otherwise) shall have been complied with; and the Commission shall not have notified the Company of any objection disclosed to the use of the form of the Registration StatementRepresentatives and complied with to their satisfaction.
(b) No Underwriter shall have been advised by the Company or shall have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, Statement or 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 Xxxxx Xxxx & Xxxxxxxx LLP, the Representatives or in the opinion of counsel for to the Underwriters, is material or omits to state a fact which, in the opinion of such counselthe Representatives or in the opinion of counsel to the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesShares, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Jones, Walker, Waechter, Poitevent, Carrere & Bird LLP Xxxxxxx, L.L.P. shall have furnished to the Representative its Representatives their written opinion and its 10b-5 letteropinion, as U.S. counsel to for the Company and the Parent GuarantorOMNI Geophysical, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished with respect to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, matters set forth in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3B hereto.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLPXxxxx, L.L.P., counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(gf) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG Xxxxxx Xxxxxxxx LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “' "comfort letters” " to Underwriters in connection with registered public offerings.
(hg) With respect to the letter of KPMG Xxxxxx Xxxxxxxx LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “"initial KPMG letter”"), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “"bring-down KPMG letter”") of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three five days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ih) Each of the Company and the Parent Guarantor On each Delivery Date, there shall have been furnished to the Representative Representatives a certificate, dated such Delivery Date and addressed to the Delivery DateRepresentatives, of a director, in the case signed on behalf of the Company, and the Company by its Chief Executive Officer or President and the its Chief Financial Officer, in to the case of the Parent Guarantor, stating that:
effect that (i) The the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, contained in Section 1 this Agreement are true and correct on correct, as if made at and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has complied with all its the agreements contained herein and satisfied all the conditions on its part to be performed complied with or satisfied hereunder at or prior to the such Delivery Date;
; (ii) No no stop order suspending the effectiveness of the Registration Statement has been issued; , and no proceedings or examination proceeding for that purpose have has been instituted or, to the knowledge of such persons, initiated or threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They the signers of said certificate have carefully examined the Registration Statement, Statement and the Prospectus and the Pricing Disclosure Packageany amendments or supplements thereto, andand such documents contain all statements and information required to be included therein, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain include any untrue statement of a material fact and did not and do not or omit to state a any material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and ; (Biv) since the Effective Date, Date there has occurred no event has occurred that should have been required to be set forth in a an amendment or supplement or amendment to the Registration Statement, Statement or the Prospectus or any Issuer Free Writing Prospectus that which has not been so set forth; and (v) no event contemplated by subsection (i) of this Section 7 in respect of any of the OMNI Entities shall have occurred.
(ji) The Underwriters Since the Effective Date, none of the OMNI Entities shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor sustained any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any material loss or interference with its business from by fire, flood, explosion, flood accident or other calamity, whether or not covered by insurance, or from shall have become a party to or the subject of any labor dispute or litigation, court or governmental action, investigation, order or decree or (ii) since such date which is materially adverse to the OMNI Entities; nor shall there shall not have been any a change in the capital stock stock, short-term debt or long-term debt of any of the Parent Guarantor OMNI Entities (other than as a result of the consummation of the Share Exchange and the LLC Transactions) or any of its subsidiaries, including the Company, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (general affairs, operations, business, prospects, management, capitalization, financial or otherwise)condition, results of operations, stockholders’ equity, properties, management, business operations or prospects net worth of the Parent Guarantor and its subsidiariesOMNI Entities, including the Companywhich loss, taken as a wholelitigation, the effect of which, in any such case described in clause (i) change or (ii), isdevelopment, in the judgment judgement of the RepresentativeRepresentatives, so material and adverse as to make shall render it impracticable impractical or inadvisable to proceed with the public offering or the payment for and delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the ProspectusShares.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(oj) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof conditions (or the effect of international conditions on the financial markets in the European Union or United States shall be such), ) as to make it, in the judgment of a majority in interest of the Representativeseveral Underwriters, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Shares being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(k) The Nasdaq shall have approved the Shares for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(l) 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.
(m) Prior to the closing hereunder on the First Delivery Date, the Share Exchange and the LLC Transactions shall have been consummated in accordance with the description thereof contained in the Prospectus. All such opinions, letterscertificates, evidence letters and certificates mentioned above or elsewhere in this Agreement documents shall be deemed to be in compliance with the provisions hereof only if they are satisfactory in form and substance reasonably satisfactory to the Representatives and to counsel for the Underwriters. The Company shall furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as they shall reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled, when and as required by this Agreement, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, each Delivery Date, by the Representatives. Any such cancellation shall be without liability of the Underwriters to the Company or any of its affiliates. Notice of such cancellation shall be given to the Company in writing, or by telegraph or telephone and confirmed in writing.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the Delivery Closing Date, of the representations representations, warranties and warranties other statements of the Company and the Parent Notes Guarantor contained herein, to the performance by each of the Company and the Parent Notes Guarantor of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); the Company shall have complied with all filings (including, without limitation, filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the final term sheet prepared pursuant to Section 5(a)(i) date hereof) required by Rule 433 ; the Final Term Sheet shall have been made, and no such filings shall have been made without timely filed with the consent Commission in accordance with Rule 433 of the RepresentativeRules and Regulations; no stop order suspending the effectiveness of the Registration Statement or 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 or pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Closing Date that the Registration Statement, the Prospectus or Prospectus, the Pricing Disclosure PackagePackage or any Issuer Free Writing Prospectus, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLPBxxxx Bxxxx L.L.P., counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Indenture, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Vxxxxx & Bird LLP Exxxxx L.L.P. shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative Representatives its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibit A-4.A.
(e) Axxxxx X. Xxxxx, III, shall have furnished to the Representatives his written opinion, as the Company’s Senior Vice President, Secretary and General Counsel, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B.
(f) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLPBxxxx Bxxxx L.L.P., counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG Ernst & Young LLP a letter, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the rules and regulations of the PCAOB and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG Ernst & Young LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement preceding paragraph (the “initial KPMG letter”), the Parent Guarantor Company shall have caused to be furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and the rules and regulations of the PCAOB and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each At the time of execution of this Agreement, the Representatives shall have received from Netherland, Sxxxxx & Associates, Inc. an initial letter (the “initial expert letter”), in form and substance reasonably satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof and a subsequent letter dated as of the Closing Date, which such letter shall cover the period from the initial expert letter to the Closing Date, stating the conclusions and findings of such firm with respect to the Company’s proved reserves as is customary to underwriters in connection with registered public offerings.
(j) The Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the Delivery Closing Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, representations and warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Closing Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose or pursuant to Section 8A under the Securities Act have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Closing Date, or and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary ProspectusPricing Disclosure Package, any loss or interference with its respective business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) and, since such date date, there shall not have been any change in the capital stock stock, net current assets or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any material adverse change, or any development involving a prospective change, in or affecting the condition (financial or otherwise)condition, results of operations, stockholders’ equity, properties, management, management or business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering offering, sale or the delivery of the Securities being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the Prospectus.
(nl) Since Subsequent to the date hereof, there execution and delivery of this Agreement (i) no downgrading shall not have occurred any downgrading with respect to any in the rating accorded the Company’s debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” (as such that term is defined in Section 3(a)(62by the Commission for purposes of Rule 436(g)(2) of the Exchange Act or any public announcement that any Rules and Regulations), and (ii) no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any of the Company’s debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)securities.
(om) 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 NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering offering, sale or delivery of the Securities being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the Prospectus.
(n) The Securities and the Indenture shall be executed by the Company, or the Notes Guarantor, as the case may be, in substantially the form previously delivered to you. 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 obligation of each Underwriter to purchase Securities on the Underwriters hereunder are Closing Date as provided herein is subject to the accuracy, when made and on the Delivery Date, of the representations and warranties of the Company contained herein being true and correct on the Parent Guarantor contained hereindate hereof and on and as of the Closing Date, to the performance by each of the Company and the Parent Guarantor of its covenants and other obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall 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 a Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i4(a) hereof) required ; and all requests by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or 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; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection with to the use reasonable satisfaction of the form of the Registration StatementRepresentative.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery such Closing Date that the Registration Statement, the Prospectus Time of Sale Information or the Pricing Disclosure PackageProspectus, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesSecurities and the Indenture, the Registration Statement, Time of Sale Information and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Xxxx, Gerber & Bird Xxxxxxxxx LLP shall have furnished to the Representative its written opinion and its 10b-5 letterstatement, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery such Closing Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3Annex A-1.
(e) Milbank, Tweed, Xxxxxx & Xxxxxxxxx X.X. XxXxxx LLP shall have furnished to the Representative its written opinionopinions, as Luxembourg special counsel to the Company, addressed to the Underwriters and dated the Delivery such Closing Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms form attached hereto as Exhibit Annex A-2.
(f) The General Counsel of the Company shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated such Closing Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Annex A-3.
(g) Xxxxxxxxx LLP shall have furnished to the Representative its written opinion, as regulatory counsel to the Company, addressed to the Underwriters and dated such Closing Date, in form and substance reasonably satisfactory to the Representative, substantially in the form of attached hereto as Annex A-4.
(fh) The Representative shall have received from Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letterstatement, addressed to the Underwriters and dated the Delivery such Closing Date, with respect to the issuance and sale of the Securities, the Registration StatementTime of Sale Information, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gi) At the time of execution of this Agreement, the Representative shall have received from KPMG Ernst & Young LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered public accountants accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary ProspectusTime of Sale Information, 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hj) With respect to the letter of KPMG Ernst & Young LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery such Closing Date (i) confirming that they are an independent registered public accountants accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ik) Each of the The Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery such Closing Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 3 are true and correct on and as of the Delivery such Closing Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery such Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iiiii) They have carefully examined the Registration Statement, the Prospectus Time of Sale Information and the Pricing Disclosure PackageProspectus, and, in their opinion, (A) (1) the Registration StatementTime of Sale Information, as of the Effective Time of Sale and as of the Closing Date, (2) and the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable TimeClosing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statementtherein, in the light of the circumstances under which they were made) , not misleading, and (B) since the Effective Datedate of Time of Sale Information, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, Time of Sale Information or the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the NotesProspectus.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
Except as described in each of the Registration Statement, the Time of Sale Information or the Prospectus, (mi) Neither neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary ProspectusTime of Sale Information, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock of the Company or the long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise)condition, results of operations, stockholders’ equity, properties, management, management or business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery such Closing Date on the terms and in the manner contemplated in the Prospectus.
(nm) Since Subsequent to the date hereof, there execution and delivery of this Agreement (i) no downgrading shall not have occurred any downgrading with respect to any in the rating accorded the debt securities of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries by any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) of the Exchange Act or any public announcement that any Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any of the debt securities (other than an announcement with positive implications of a possible upgrading, and no implication the Company or any of a possible downgrading of such rating)its subsidiaries.
(on) 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 NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery such Closing Date on the terms and in the manner contemplated in the Prospectus.
(o) The Company shall have furnished to the Representative a certificate of its Chief Financial Officer, on the date hereof and on the Closing Date, substantially in the form of Annex D hereto.
(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 Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Selling Stockholder contained herein, to the performance by each of the Company and the Parent Guarantor Selling Stockholder of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus part thereof shall have been issued and no proceeding or examination for such that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, Statement or 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 Xxxxx Xxxx Clifxxxx Xxxnce Rogexx & Xxxxxxxx LLPXellx XXX, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesCustody Agreement, the Power of Attorney, the Stock, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) Xxxxxx Hellxx Xxxmxx XxXuxxxxx & Bird LLP Xhite shall have furnished to the Representative its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating effect that:
(i) The representationsCompany has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, warranties is duly qualified to do business and agreements is in good standing as a foreign corporation in each jurisdiction in which its ownership or lease of property or the Company conduct of its businesses requires such qualification and has all power and authority necessary to own or hold its properties and conduct the Parent Guarantor, as applicable, businesses in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Datewhich it is engaged;
(ii) No The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company (including the shares of Stock being delivered on such Delivery Date) have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus; and all of the issued shares of capital stock of each of the subsidiaries of the 15 Company owned by the Company are owned by the Company, free and clear of all liens, encumbrances, equities or claims;
(iii) There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of the Stock pursuant to the Company's charter or by-laws or any agreement or other instrument known to such counsel;
(iv) The real property and buildings held under lease by the Company are held by it under valid, subsisting and enforceable leases, with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company;
(v) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending to which the Company is a party or of which any property or assets of the Company is the subject which, if determined adversely to the Company, might have a material adverse effect on the consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company except as described in the Prospectus; and, to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The Registration Statement was declared effective under the Securities Act as of the date and time specified in such opinion, the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) of the Rules and Regulations specified in such opinion on the date specified therein and no stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted orissued and, to the knowledge of such personscounsel, threatened; and no proceeding for that purpose is pending or threatened by the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Commission;
(vii) The Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, and the Prospectus and any further amendments or supplements thereto made by the Pricing Disclosure Package, and, in their opinion, Company prior to such Delivery Date (A) (1) other than the Registration Statementfinancial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Effective Date, (2) Securities Act and the Prospectus, as of its date Rules and on Regulations; the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or documents incorporated by reference in the most recent Preliminary ProspectusProspectus and any further amendment or supplement to any such incorporated document made by the Company prior to such Delivery Date (other than the financial statements and related schedules therein, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since as to which such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwisecounsel need express no opinion), results of operationswhen they became effective or were filed with the Commission, stockholders’ equityas the case may be, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse complied as to make it impracticable or inadvisable to proceed form in all material respects with the public offering or the delivery requirements of the Securities being delivered on Act or the Delivery Date on Exchange Act, as applicable, and the terms rules and regulations of the Commission thereunder;
(viii) To the best of such counsel's knowledge, there are no contracts or other documents which are required to be described in the manner contemplated in Prospectus or filed as exhibits to the Prospectus.Registration Statement by the Securities Act or by the Rules and Regulations which have not been described or filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules and Regulations;
(nix) Since This Agreement has been duly authorized, executed and delivered by the date hereof, there shall not have occurred any downgrading with respect to any debt securities Company; and each of the Parent Guarantor or any of its subsidiariesother documents relating to this Agreement to which the Company is a party has been duly authorized, including executed and delivered by the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 (Thoratec Laboratories Corp)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i5(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and promptly disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, Statement or 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 Xxxxxxxx & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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, and such statement has not been corrected in any such document.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird Xxxxxx LLP shall have furnished to the Representative its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3B-1.
(e) Xxxxxx & Xxxxxxxxx X.X. Thommessen Xxxxxxxx Xxxxx Xxxx AS, Norwegian Counsel to the Company, shall have furnished to the Representative its written opinion, as Luxembourg Norwegian counsel to the Company, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, Representative substantially in the forms form attached hereto as Exhibit A-4B-2.
(f) The Representative shall have received from Xxxxxxxx & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG PricewaterhouseCoopers LLP a letter, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered public accountants accounting firm within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Accounting Oversight Board (“PCAOB”) and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the comfort letter of KPMG PricewaterhouseCoopers LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG comfort letter”), the Parent Guarantor Company shall have furnished to the Representative a letter (the “bring-down KPMG comfort letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are an independent registered public accountants accounting firm within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the PCAOB and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG comfort letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG comfort letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG comfort letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG comfort letter.
(i) Each of the The Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; , and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and;
(iii) They have carefully examined the Registration Statement, Statement and the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective DateTime, (2) and the Prospectus, as of its date and on the as of such Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration StatementProspectus, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective DateTime, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, Statement or the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.; and
(ji) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree decree, otherwise than as set forth or contemplated in the Prospectus, or (ii) since such date there shall not have been any material change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any material change, or any development involving a material prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ok) 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 NYSE New York Stock Exchange, or the American Stock Exchange or the NASDAQ National Market, or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(l) The NASDAQ National Market, Inc. shall have approved the Stock for inclusion, subject only to official notice of issuance and evidence of satisfactory distribution.
(m) The Lock-Up Agreements between the Representative and the Company and the officers, and directors of the Company set forth on Schedule 2, delivered to the Representative on or before the date of this Agreement, shall be in full force and effect on such Delivery Date. 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 Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Company shall have been made, and no such filings complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; the Registration Statement shall have been made without become effective under the consent of the RepresentativeSecurities Act; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no stop order suspending or preventing or suspending the use of the Prospectus or any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus shall have been issued by the Commission and no proceeding or examination for such purpose proceedings therefor shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement and all necessary regulatory or the Prospectus or otherwise stock exchange approvals shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.received. 252647.6
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus Pricing Disclosure Package or the Pricing Disclosure PackageProspectus, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLPXxxxxx, counsel for the Underwriters, is material or omits to state 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.
(c) No prospectus or amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Representative shall have objected in writing.
(d) All corporate proceedings and other legal matters incident to required for the authorization, form and validity authorization of this Agreement, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be herein and the sale and issuance of the Stock as contemplated by the Registration Statement and the Prospectus have been completed reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. Traurig LLP shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms form attached hereto as Exhibit A-4.B.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLPXxxxxx, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP each of BDO and Xxxx Xxxxx a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 S‑X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Registration Statement, Pricing Disclosure Package and 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 regarding the Company and the Parent Guarantor and (iii) providing for other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter letters of KPMG LLP BDO and Xxxx Xxxxx referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of each such accountantsfirm, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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.of
Appears in 1 contract
Samples: Underwriting Agreement (Viggle Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters Underwriter hereunder are subject to the accuracy, when made and on the Delivery Date, of the representations and warranties of the Company Company, the Principal Subsidiary and the Parent Guarantor Selling Stockholders contained herein, to the performance by each of the Company and the Parent Guarantor Selling Stockholders of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Mayer, Brown, Xxxx & Xxxxxxxx Maw LLP, counsel for the UnderwritersUnderwriter, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesPowers of Attorney, the Stock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the UnderwritersUnderwriter, and the Company and the Parent Guarantor 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) Xxxxxx & Bird Xxxxxxx LLP shall have furnished to the Representative Underwriter its written opinion and its 10b-5 letteropinions, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters Underwriter and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, substantially in the forms attached hereto as Exhibits A-1 Exhibit B-1 and A-2. R. Xxxxx XxxxxxExhibit B-2 and the statement of Xxxxxx & Xxxxxxx as to certain other matters as set forth in Exhibit B-3.
(e) Xxxxxx Xxxxx, Vice President—Business Strategy and General Counsel of the Parent GuarantorCompany, shall have furnished to the Representative Underwriter his written opinion, at the request of the Company and the Parent Guarantor, opinion addressed to the Underwriters Underwriter and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, substantially in the form attached hereto as Exhibit A-3.C.
(ef) Xxxxxx & Xxxxxxxxx X.X. Elvinger Hoss et Prussen shall have furnished to the Representative Underwriter its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters Underwriter and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, substantially in the forms form attached hereto as Exhibit A-4.D.
(fg) The Representative Underwriter shall have received the written opinions of counsel to each Selling Stockholder addressed to the Underwriter and dated such Delivery Date, in form and substance reasonably satisfactory to the Underwriter, substantially in the form attached hereto as Exhibit E.
(h) The Underwriter shall have received from Xxxxx Mayer, Brown, Xxxx & Xxxxxxxx Maw LLP, counsel for the UnderwritersUnderwriter, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and Prospectus, the Pricing Disclosure Package and other related matters as the Representative Underwriter may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gi) At On the time date of execution of this Agreement, the Representative Underwriter shall have received from KPMG Ernst & Young LLP a letter, in form and substance satisfactory to the RepresentativeUnderwriter, addressed to the Underwriters Underwriter and dated the date hereof (i) confirming that they are independent registered 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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hj) With respect to the letter of KPMG Ernst & Young LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Underwriter concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Underwriter a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters Underwriter and dated the such Delivery Date (i) confirming that they are independent registered 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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ik) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Underwriter a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, Principal Subsidiary in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; , and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, Package and, in their opinion, (A) (1A)(1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the as of such Delivery Date, or and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or an amendment to the Registration Statement, Statement or a supplement to the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(jl) The Underwriters Each Selling Stockholder (or one or more attorneys-in-fact on behalf of the Selling Stockholders) shall have received an executed copy furnished to the Underwriter on such Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, the Selling Stockholder (or one or more attorneys-in-fact) stating that the representations, warranties and agreements of the Paying Agency AgreementSelling Stockholder contained herein are true and correct on and as of such Delivery Date, or true and correct in all material respects where such representations and warranties are not qualified by materiality, and that the Selling Stockholder has complied in all material respects 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.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(mi) Neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeUnderwriter, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(o) 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 NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-counter marketmarket in the United States, or trading in any securities of the Company or the Parent Guarantor on any exchange in the United States or in the over-the-counter marketmarket in the United States, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeUnderwriter, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(o) The Nasdaq Stock Market LLC shall have approved the Stock for inclusion in the Nasdaq Global Market, subject only to official notice of issuance.
(p) The Lock-Up Agreements between the Underwriter and the officers, directors and stockholders of the Company set forth on Schedule 2, delivered to the Underwriter on or before the date of this Agreement, shall be in full force and effect on such Delivery Date. 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 1 contract
Samples: Underwriting Agreement (Cogent Communications Group Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the RepresentativeRepresentatives; no stop order suspending the effectiveness of the Registration Statement or 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; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP shall have furnished to the Representative Representatives its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative Representatives its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms attached hereto as Exhibit A-4A-3.
(f) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 under the Commission Securities Act and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of under the Commission Securities Act and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer Secretary and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement and the ICSD Agreement.
(k) Application shall have been made to list and admit the Notes on the NYSE for trading on such exchange Euro MTF Market of the Luxembourg Stock Exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE Luxembourg Stock Exchange a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither Except as described in each of the most recent Preliminary Prospectus and the Prospectus, (i) neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause clauses (i) or (ii), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE Euro MTF Market operated by the Luxembourg Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 Underwriters hereunder are subject to the accuracy, when made and on the Delivery date of the Prospectus and on the Closing Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to ) and Section 5(a)(i5(a)(iv) hereof) required by Rule 433 ; the Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or any document incorporated by reference therein or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Closing Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the reasonable opinion of Xxxxx Xxxx & Xxxxxxxx Chance US LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Indenture, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Xxxxxxxx & Bird Xxxxxxxx LLP shall have furnished to the Representative Underwriters its written opinion and its 10b-5 separate negative assurance letter, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and delivered and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially in addressing the forms matters set forth on Exhibit A attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxxhereto.
(e) Xxxxxx Carolina, Vice President—Business Strategy and Associate General Counsel of the Parent GuarantorCompany, shall have furnished to the Representative his Underwriters her written opinion, at the request of the Company and the Parent Guarantor, opinion addressed to the Underwriters and delivered and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially in addressing the form matters set forth on Exhibit B attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4hereto.
(f) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Chance US LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG PricewaterhouseCoopers LLP a letter, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and the Company and dated the date hereof (i) confirming that they are independent registered 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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG PricewaterhouseCoopers LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor PricewaterhouseCoopers LLP shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and the Company and dated the Delivery Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, Commission; (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letter; (iii) covering financial information in the Prospectus; and (iiiiv) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each The Company shall have furnished to the Representatives a certificate, dated the Closing Date, of any vice-president of the Company and the Parent Guarantor shall have furnished principal financial officer, vice president/treasurer or principal or accounting officer of the Company satisfactory to the Representative a certificate, dated Representatives to the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating effect that:
(i) The representations, representations and warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 that are qualified by materiality or similar qualifiers are true and correct on and as of the Delivery Closing Date and the representations and warranties of the Company in Section 1 that are not qualified by materiality or similar qualifiers are true and correct in all material respects on and as of the Closing Date, and each of the Company and the Parent Guarantor, as applicable, has complied in all material respects 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 Delivery Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the each Effective Date, (2) the Prospectus, as of its the date of the Prospectus Supplement and on as of the Delivery Closing Date, or and (3) the Pricing Disclosure Package, as of the Applicable TimeTime and as of the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of Except as described in the Paying Agency Agreement.
Pricing Disclosure Package and the Prospectus, (ki) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary ProspectusPricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock (other than the Company’s quarterly Common Stock dividend paid in February 2010, May 2010 and August 2010 and to be paid in March 2011) or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects properties of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the reasonable judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery sale of the Securities being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the ProspectusPricing Disclosure Package, the Prospectus or this Agreement.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ok) Subsequent to the execution and delivery of this Agreement, (i) no downgrade in the rating of the Company or its financial strength or the rating of any of the Company’s 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 (the “Rating Agencies”) shall have occurred or be pending and (ii) no Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Company or the Company’s financial strength or its rating of any of the Company’s 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 NYSE New York Stock Exchange or in the over-the-counter marketNASDAQ National Market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state or European Union authorities, ; (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States States; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery sale of the Securities being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the ProspectusPricing Disclosure Package, the Prospectus or 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 Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i5(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus part thereof shall have been issued and no proceeding or examination for such that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, Statement or 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 Xxxxx Xxxx Xxxxxxx, Phleger & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Weil, Gotshal & Xxxxxx & Bird LLP LLP, U.S. counsel to the Company, shall have furnished to the Representative Representatives its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantoropinion, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms form of EXHIBIT B attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxxhereto.
(e) Goldfarb, Vice President—Business Strategy and General Counsel of Levy, Eran & Co., foreign counsel to the Parent GuarantorCompany, shall have furnished to the Representative his Representatives its written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form of EXHIBIT C attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4hereto.
(f) The Representative Representatives shall have received from Xxxxx Xxxx Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received from Meitar, Liquornik, Geva & Co., foreign counsel for the Underwriters, such opinion or opinions, dated such Delivery Date, with respect to the issuance and sale of the Stock, the Registration Statement, the Prospectus and other related matters as the 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.
(h) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG LLP Luboshitz Kasierer, a member firm of Xxxxxx Xxxxxxxx, a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “' "comfort letters” " to Underwriters underwriters in connection with registered public offerings.
(hi) With respect to the letter of KPMG LLP Luboshitz Kasierer, a member firm of Xxxxxx Xxxxxxxx, referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “"initial KPMG letter”"), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “"bring-down KPMG letter”") of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three five days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ij) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case its Chairman of the CompanyBoard, its President and the Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of ; the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatenedherein; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment theretoconditions set forth in Sections 7(a) and 7(k) have been fulfilled; and
(iiiii) They have carefully examined the Registration Statement, Statement and the Prospectus and the Pricing Disclosure Package, and, in their opinion, opinion (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date Registration Statement and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, Prospectus did not and do not contain include any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, Date no event has occurred that which should have been set forth in a supplement or amendment to the Registration Statement, Statement or the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency AgreementProspectus.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, Neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree decree, otherwise than as set forth or contemplated in the Prospectus or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, propertiesgeneral affairs, management, business financial position, stockholders' equity or prospects results of operations of the Parent Guarantor Company and its subsidiaries, including otherwise than as set forth or contemplated in the Company, taken as a wholeProspectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ol) 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 NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal Federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof conditions (or the effect of international conditions on the financial markets in the European Union or United States shall be such), ) as to make it, in the judgment of a majority in interest of the Representativeseveral Underwriters, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 Underwriters hereunder are subject to the accuracyaccuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects), when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 . The Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 in writing by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration StatementStatement or any post-effective amendment thereto.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx Dechert LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Xxxxxxx Xxxxx & Bird Xxxxxx LLP shall have furnished to the Representative Representatives its written opinion and its 10b-5 negative assurance letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms form attached hereto as Exhibit A-4B-1.
(e) Xxxxxxxxx & Xxxxxxx LLP, shall have furnished to the Representatives its written opinion, as regulatory counsel to the Company, addressed to the Underwriters and dated such Delivery Date, substantially in the form attached hereto as Exhibit B-2.
(f) Xxxxxx & Xxxxxxxxx LLP and Royalance, Xxxxxx, Berdo & Xxxxxxx, LLP, shall have furnished to the Representatives its written opinion, as intellectual property counsel to the Company, addressed to the Underwriters and dated such Delivery Date, substantially in the form attached hereto as Exhibit B-3.
(g) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Dechert LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gh) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG LLP PricewaterhouseCoopers LLC a letter, in form and substance satisfactory to the Representative, letter addressed to the Underwriters Representatives on behalf of the Underwrites and dated the date hereof (i) confirming that they are an independent registered public accountants accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus, as of a date not more than three five (5) business days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hi) With respect to the letter of KPMG LLP PricewaterhouseCoopers LLC referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor PricewaterhouseCoopers LLC shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Representatives on behalf of the Underwriters and dated the such Delivery Date (i) confirming that they are an independent registered public accountants accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three five (5) business days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ij) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial OfficerOfficer as to such matters as the Representatives may reasonably request, in the case of the Parent Guarantorincluding, stating without limitation, a statement that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct in all material respects (except to the extent already qualified by materiality, in which case such representations, warranties and agreements shall be subject to the accuracy in all respects) on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has shall not have notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list Except as described in the Notes on the NYSE for trading on such exchange andmost recent Preliminary Prospectus, in connection therewith, (i) neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its 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 decree, or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), 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 public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(nl) Since Subsequent to the date hereof, there execution and delivery of this Agreement (i) no downgrading shall not have occurred any downgrading with respect to any in the rating accorded the Company’s debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, preferred stock by any “nationally recognized statistical rating organization” (as such that term is defined used by the Commission in Section 3(a)(62) of 15E under the Exchange Act or any public announcement that any Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any of the Company’s debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)or preferred stock.
(om) 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 NYSE The New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market, or in the over-the-counter marketThe NASDAQ Capital Market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter marketexchange, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), in any such case described in clause (i), (ii), (iii) or (iv), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Upon issuance, the Stock will be listed on the NASDAQ Global Market.
(o) The Lock-Up Agreements between Barclays Capital Inc. and the officers, directors and stockholders of the Company set forth on Schedule II, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(p) On or prior to each Delivery Date, the Company shall have furnished to the Underwriters such further certificates and documents as the Representatives or counsel to the 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 counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are to purchase the Securities shall be subject to the accuracy, when made and on the Delivery Date, accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Parent Guarantor contained hereinClosing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Prospectus Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been timely filed with the Commission in accordance with Section 5(a)(i); all within the applicable time periods prescribed for such filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, 433; and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the any notice objecting to its use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination proceedings for such that purpose shall have been initiated instituted or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statementthreatened.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Closing Date that the Registration Statement, the Prospectus Disclosure Package or the Pricing Disclosure Package, Final Prospectus or any amendment or supplement thereto, thereto contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx Mayer, Brown, Rxxx & Xxxxxxxx Maw LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Indenture, the Securities, the Registration Statement, the Prospectus Disclosure Package and any Issuer Free Writing the Final 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 UnderwritersMayer, Brown, Rxxx & Maw LLP, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP Sidley Austin llp and Mxxx Xxx Xxxxx, Esq. shall each have furnished to the Representative its Representatives their written opinion and its 10b-5 letteropinion, as U.S. counsel and General Counsel to the Company and the Parent GuarantorCompany, respectively, addressed to the Underwriters and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 7(d)(A) and A-2. R. Xxxxx Xxxxxx7(d)(B), Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3respectively.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative Representatives shall have received from Xxxxx Xxxx Mayer, Brown, Rxxx & Xxxxxxxx Maw LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus Disclosure Package and the Pricing Disclosure Package Final Prospectus and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gf) At the time of execution of this AgreementExecution Time and at the Closing Date, the Representative KPMG LLP shall have received from KPMG LLP a letterfurnished to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representative, addressed to the Underwriters Representatives and dated the date hereof (i) confirming that they are independent public accountants within the meaning containing statements and information of the Securities Act and are type customarily included in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters with respect to the financial statements and certain financial information contained in connection with registered public offeringsthe Disclosure Package and the Final Prospectus. All references in this Section 7(f) to the Disclosure Package and the Final Prospectus include any amendment or supplement thereto at the date of the applicable letter.
(hg) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor The Company shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the Delivery Closing Date, of a director, in the case its Chairman of the CompanyBoard, its President or a Vice President and its chief financial officer or chief accounting officer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and the Chief Executive Officer this Agreement and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, Closing Date with the same effect as if made on the Closing Date and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement has been issued; issued and no proceedings or examination for that purpose have been instituted or are pending or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use respective signers of the form of certificate, are contemplated under the Registration Statement or any post-effective amendment theretoAct; and
(iii) They have carefully examined since the Registration Statement, date of the Prospectus most recent financial statements included in the Disclosure Package and the Pricing Disclosure PackageFinal Prospectus (exclusive of any supplement thereto), andthere has been no Material Adverse Change, in their opinion, (A) (1) the Registration Statement, except as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forththereto).
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(mh) Neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, Disclosure Package and the Final Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree decree, otherwise than as set forth or (ii) contemplated in the Disclosure Package and the Final Prospectus or since such date there shall not have been any material change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any changeMaterial Adverse Change, otherwise than as set forth or any development involving a prospective change, contemplated in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of Disclosure Package and the Parent Guarantor and its subsidiaries, including the Company, taken as a wholeFinal Prospectus, the effect of which, in any such case described in clause (i) or (ii), which is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the ProspectusDisclosure Package and the Final Prospectus or in a supplement thereto.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(oi) Subsequent to the execution and delivery of this AgreementAgreement (i) no downgrading shall have occurred in 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, with possible negative implications, its rating of any of the Company’s debt securities.
(j) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or on the Parent Guarantor on any exchange or in the over-the-counter marketNew York Stock Exchange, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market the New York Stock Exchange, by the Commission, by such exchange the New York Stock Exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal Federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or affecting the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof conditions (or the effect of international conditions on the financial markets in the European Union or United States shall be such), ) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the ProspectusDisclosure Package and the Final Prospectus or in a supplement thereto. 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 specified in this Section 7 shall not have been fulfilled 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 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 at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Mayer, Brown, Rxxx & Maw LLP, counsel for the Underwriters, at , 70 Xxxxx Xxxxxx Xxxxx, Chicago, Illinois, on the Closing Date
Appears in 1 contract
Samples: Underwriting Agreement (Corn Products International Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Partnership Parties contained herein, to the performance by each the Partnership Parties of the Company and the Parent Guarantor of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Partnership Parties shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 that purpose shall have been initiated or threatened by the Commission; and the Prospectus shall comply with any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statementotherwise.
(b) No Underwriter The Underwriters shall not have discovered and disclosed to any of the Company Partnership Parties on or prior to the any Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesUnits, the Registration Statement, the Prospectus and any Issuer Free Writing 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 and the Parent Guarantor Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP Xxxxxx L.L.P. shall have furnished to the Representative Representatives its written opinion and its 10b-5 letteropinion, as U.S. counsel to for the Company and the Parent GuarantorPartnership, addressed to the Underwriters and dated the applicable Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibits A-1 and A-2. R. Exhibit A.
(e) Xxxxx XxxxxxX. Xxxxx, Vice President—Business Strategy and Xx., General Counsel of the Parent GuarantorGeneral Partner, shall have furnished to the Representative Representatives his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the applicable Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.B.
(f) The Representative Representatives shall have received from Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the applicable Delivery Date, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor Partnership shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from each of (i) KPMG LLP a letterand (ii) Xxxxx Xxxxxxxx LLP, one or more letters, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus and the 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter letters of KPMG LLP and Xxxxx Xxxxxxxx LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letterletters”), the Parent Guarantor Partnership shall have furnished to the Representative a letter Representatives one or more letters (the “bring-down KPMG letterletters”) of such accountants, addressed to the Underwriters and dated the applicable Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter letters (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letterletters), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letterletters.
(i) Each of the Company and the Parent Guarantor The Partnership shall have furnished to the Representative Representatives a certificate, dated the applicable Delivery Date, of a director, in the case signed on behalf of the Company, and Partnership by (i) the Chief Executive Officer of the General Partner and (ii) the Chief Financial Officer, in the case Officer of the Parent GuarantorGeneral Partner, stating that:
(i) The the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, Partnership Parties in Section 1 are true and correct on and as of the applicable Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has Partnership Parties have complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied by the Partnership Parties hereunder at or prior to the applicable Delivery Date;
(ii) No 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 personstheir knowledge, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They they have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, opinion (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration StatementProspectus, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters Except as described in the most recent Preliminary Prospectus and the Prospectus, (i) none of the Partnership Entities shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, Prospectus and the Prospectus any loss or interference with its business from fire, explosionflood, flood explosion or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or decree; (ii) since such date nor shall there shall not have been any a change in the capital stock partners’ capital, members’ interest, or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, Partnership Entities or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, Partnership Entities taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, Representatives is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Units being delivered on the applicable Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ok) 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 NYSE, the NYSE Amex Equities or the Nasdaq Global Market or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor Partnership on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), ) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Units being delivered on the applicable Delivery Date on the terms and in the manner contemplated in the Prospectus.
(l) The NYSE shall have approved the Units for listing.
(m) The Lock-Up Agreements between the Representatives and each person or entity set forth on Schedule 5, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on each Delivery Date. All such opinions, letterscertificates, evidence letters and certificates documents mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to the Representatives and to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the Delivery date of the Prospectus and on the Closing Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to ) and Section 5(a)(i5(a)(iv) hereof) required by Rule 433 ; the Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 or pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or any document incorporated by reference therein or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration StatementStatement or any post-effective amendment thereto.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Closing Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the reasonable opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesShares, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Xxxxxxxx & Bird Xxxxxxxx LLP shall have furnished to the Representative Underwriters its written opinion and its 10b-5 separate negative assurance letter, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and delivered and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially in addressing the forms matters set forth on Exhibit A attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxxhereto.
(e) Xxxxxx X. Xxxxx, Vice President—Business Strategy and /General Counsel Counsel/Corporate Secretary of the Parent GuarantorCompany, shall have furnished to the Representative Underwriters his written opinion, at the request of the Company and the Parent Guarantor, opinion addressed to the Underwriters and delivered and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially in addressing the form matters set forth on Exhibit B attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4hereto.
(f) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Closing Date, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG PricewaterhouseCoopers LLP a letter, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and the Company and dated the date hereof (i) confirming that they are independent registered 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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG PricewaterhouseCoopers LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor PricewaterhouseCoopers LLP shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and the Company and dated the Delivery Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, Commission; (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three two days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letter; (iii) covering financial information in the Prospectus; and (iiiiv) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each At the time of the execution of this Agreement and on the Closing Date, the Representatives shall have received a certificate of the Chief Financial Officer of the Company, dated as of such date, in a form reasonably satisfactory to the Representatives.
(j) The Company shall have furnished to the Representatives a certificate, dated the Closing Date, of any vice-president of the Company and the Parent Guarantor shall have furnished principal financial officer, vice president/treasurer or principal accounting officer of the Company satisfactory to the Representative a certificate, dated Representatives to the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating effect that:
(i) The representations, representations and warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct with the same force and effect as though expressly made on and as of the Delivery Closing Date or any Additional Closing Date, and each of the Company and the Parent Guarantor, as applicable, and the Company has complied with in all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Delivery Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose or pursuant to Section 8A under the Securities Act have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the each Effective Date, (2) the Prospectus, as of its date and on as of the Delivery Closing Date, or and (3) the Pricing Disclosure Package, as of the Applicable TimeTime and as of the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list Except as described in the Notes on Pricing Disclosure Package and the NYSE for trading on such exchange andProspectus, in connection therewith, (i) neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference respective dates as of which information is given in the most recent Preliminary ProspectusPricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock stock; or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects properties of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the reasonable judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery sale of the Securities Shares being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the ProspectusPricing Disclosure Package, the Prospectus or this Agreement.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ol) 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 NYSE Exchange or in the over-the-counter marketNASDAQ National Market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state authorities; or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or States, there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) States, there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery sale of the Securities Shares being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the ProspectusPricing Disclosure Package, the Prospectus or this Agreement.
(m) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares.
(n) The Shares to be delivered on the Closing Date or the Additional Closing Date, as the case may be, shall have been approved for listing on the Exchange, subject to official notice of issuance.
(o) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between you and certain officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be full force and effect on the Closing Date or the Additional Closing Date, as the case may be.
(p) On or prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall have furnished to the Representatives such further certificates and documents as the 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 (Southwest Gas Holdings, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters Underwriter hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i4(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No The Underwriter shall not have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, Statement or 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 Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the UnderwritersUnderwriter, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the UnderwritersUnderwriter, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Xxxxx & Bird Lardner LLP shall have furnished to the Representative Underwriter its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters Underwriter and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, substantially in the forms form attached hereto as Exhibits A-1 and A-2. R. Exhibit B-1.
(e) Xxxxx XxxxxxX. Xxxxxxxxx, Vice President—Business Strategy and Assistant General Counsel of to the Parent GuarantorCompany, shall have furnished to the Representative his Underwriter its written opinion, at as counsel to the request of the Company and the Parent GuarantorCompany, addressed to the Underwriters Underwriter and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4B-2.
(f) The Representative Underwriter shall have received from Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the UnderwritersUnderwriter, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Underwriter may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative The Company shall have received furnished to the Underwriter a letter from KPMG LLP a letterLLP, in form and substance satisfactory to the RepresentativeUnderwriter, addressed to the Underwriters Underwriter and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters ordinarily covered by the initial KPMG letter and (iii) confirming accountants’ “comfort letters” to underwriters in all material respects the conclusions and findings set forth in the initial KPMG letterconnection with registered public offerings.
(ih) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Underwriter a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; , and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and;
(iii) They have carefully examined the Registration Statement, Statement and the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective DateTime, (2) and the Prospectus, as of its date and on the as of such Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration StatementProspectus, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective DateTime, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, Statement or the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.; and
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(mi) Neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary ProspectusProspectus (exclusive of any amendment or supplement thereto after the date hereof), any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeUnderwriter, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(oj) 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 NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeUnderwriter, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus. The NASDAQ National Market, Inc. shall have approved the Stock for inclusion, subject only to official notice of issuance. The Lock-Up Agreements between the Underwriter and the officers, directors and stockholders of the Company set forth on Schedule 1, delivered to the Underwriter on or before the date of this Agreement, shall be in full force and effect on such Delivery Date. 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 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company Trust and the Parent Guarantor Selling Unitholder Parties contained herein, to the performance by each of the Company Trust and the Parent Guarantor Selling Unitholder Parties of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Trust and the Selling Unitholder Parties shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company Trust or the Selling Unitholder Parties on or prior to the such Delivery Date that the Registration 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 Xxxxx Xxxx Cravath, Swaine & Xxxxxxxx Mxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate and other proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesOffered Units, the Registration Statement, the Prospectus Prospectus, and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company Trust and the Parent Guarantor Selling Unitholder 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) Xxxxxx (1) Txxxxxxx & Bird LLP Knight L.L.P. shall have furnished to the Representative Representatives its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorTrust, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issuedA-1; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 (Permian Basin Royalty Trust)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when as of the date hereof and at the Closing Date (as if made and on at the Delivery Closing Date), of the representations and compliance with all representations, warranties and agreements of the Company and the Parent Guarantor Offerors contained herein, to the performance by each of the Company and the Parent Guarantor Offeror of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Prospectus Registration Statement shall have become effective not later than 5:00 p.m., Mountain Standard Time, on the date of this Agreement, or such later time and date as the Underwriters shall approve and all filings required by Rules 424, 430A and 434 of the Rules and Regulations shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus amendment thereof shall have been issued and no proceeding or examination proceedings for the issuance of such purpose an order shall have been initiated or threatened by the Commissionthreatened; and any request of the Commission for inclusion of additional information (to be included in the Registration Statement or the Prospectus or otherwise otherwise) shall have been complied with; and the Commission shall not have notified the Company of any objection with to the use of the form of the Registration StatementRepresentative's reasonable satisfaction.
(b) No Underwriter The Representative shall not have discovered and disclosed to advised the Company on or prior to the Delivery Date Trust that the Registration Statement, the Prospectus Statement or the Pricing Disclosure PackageProspectus, or any amendment thereof or supplement theretothereto (including any term sheet within the meaning of Rule 434 of the Rules and Regulations), contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the UnderwritersRepresentative's reasonable opinion, is material material, or omits to state a fact which, in the opinion of such counselRepresentative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Datetherein, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) , not misleading, and such misstatement or omission has not been corrected.
(Bc) since Except as contemplated in the Effective Date, no event has occurred that should have been set forth in a supplement Prospectus or amendment to the Registration Statement, subsequent to the Prospectus respective dates as of which information is given in the Registration Statement and the Prospectus, none of the Trust, the Company or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy subsidiary of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to incurred any material liabilities or obligations, direct or contingent, not in the NYSE a listing application ordinary course of business, 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 respect to its capital stock, except regular quarterly cash dividends declared by the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any Board of its subsidiaries, including the Company, shall have sustained, since the date Directors of the latest audited financial statements included or incorporated Company and paid by reference the Company in the most recent Preliminary Prospectus, any loss or interference ordinary course of business in accordance with its business from fire, explosion, flood or other calamity, whether or not covered the dividend policy established by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date the Board of Directors; and there shall not have been any change in the capital stock of the Company or any subsidiary (except for options granted (or the exercise thereof) pursuant to or shares of Common Stock issued pursuant to any employee benefit plan, or as compensation to the directors of the Company), or any material increase in the short-term or long-term debt debt, including capitalized lease obligations (except such increases as are incurred in the ordinary course of business) of the Parent Guarantor Company or its subsidiaries, or any issuance of warrants, convertible securities or other rights to purchase the capital stock of the Company or any of its subsidiaries, including the Companysubsidiaries (except as noted above), or any change, or any development involving a prospective change, material adverse change in or affecting the condition (financial or otherwise), financial results of operations, stockholders’ equity, properties, management, or business or prospects affairs of the Parent Guarantor Company, its subsidiaries and its subsidiaries, including the CompanyTrust, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), isthat, in the judgment of the Representative's reasonable judgment, so material and adverse as to make makes it impracticable impractical or inadvisable to proceed with offer or deliver the public offering or the delivery of the Trust Preferred Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(nd) Since On the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilitiesClosing Date, there shall have been an escalation in hostilities involving a member state furnished to the Representatives the opinion of Grahxx & Xunn XX, counsel for the Company, dated the Closing Date and addressed to the Underwriters, to the effect that:
(i) Each of the European Union Company and the Banks has the corporate power and authority to own its properties and conduct its business as currently being carried on and as described in the Registration Statement and Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction in which its ownership or lease of property or the United States conduct of its business makes such qualification necessary and in which the failure to so qualify would have a material adverse effect upon the business, condition (financial or there shall have been a declaration otherwise), properties or results of a national emergency or war by a member state operations of the European Union Company, its subsidiaries and the Trust, taken as a whole. Each of the Company and its subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended.
(ii) The authorized capitalization of the Company is as set forth in the Prospectus under the heading "Capitalization" (except for shares of capital stock subsequently issued pursuant to employee or director plans).
(iii) To the United States knowledge of such counsel, all of the issued and outstanding capital stock of the Company's subsidiaries and the Common Securities of the Trust are owned by the Company, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim, except in the case of Glacier Bank of Eureka and Glacier Bank of Whitefish.
(iv) there shall have occurred The statements in the Prospectus under the caption "Description of the Preferred Securities," "Description of the Subordinated Debentures," "Description of the Guarantee" and "Relationship Among the Preferred Securities, the Subordinated Debentures and the Guarantee," insofar as such statements constitute matters of law applicable to the Offerors or summaries of documents, fairly present the information required to be included therein in all material respects.
(v) Each of the Trust Agreement, the Indenture and the Guarantee Agreement has been duly qualified under the Trust Indenture Act.
(vi) Neither the Company nor the Trust is and after giving effect to the offering and sale of the Trust Preferred Securities, the Junior Subordinated Debentures and the Guarantee and the application of the proceeds from the sale of these securities as described in the Prospectus under the caption "Use of Proceeds" will be, an "investment company" or a company "controlled" by an "investment company" within the meaning of the 1940 Act.
(vii) The statements set forth in the Prospectus under the caption "Certain Federal Income Tax Consequences" constitute an accurate summary of the matters addressed therein in all material adverse change in general economicrespects, political based upon current law and the assumptions stated or financial conditionsreferred to therein.
(viii) Under current law, including, without limitation, the Trust will be classified for United States federal income tax purposes as a result grantor trust and not as an association taxable as a corporation; accordingly, for United States federal income tax purposes each beneficial owner of terrorist activities after Trust Preferred Securities will be treated as owning an undivided beneficial interest in the date hereof (or the effect of international conditions Junior Subordinated Debentures, and stated interest on the financial markets Junior Subordinated Debentures generally will be included in income by a holder of Trust Preferred Securities at the European Union time such interest income is paid or United States shall be such)accrued in accordance with such holder's regular method of tax accounting.
(ix) The Registration Statement has become effective under the Act and, as to make itthe actual knowledge of such counsel, in no stop order suspending the judgment effectiveness of the Representative, impracticable Registration Statement has been issued and no proceeding for that purpose has been instituted or inadvisable to proceed with threatened by the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and Commission. The Prospectus has been filed in the manner contemplated and within the time period required by Rule 424(b) of the Act.
(x) Such counsel does not know of any contracts or documents of a character required to be described in the Prospectus. All opinionsRegistration Statement or Prospectus or included as exhibits to the Registration Statement that are not described or included as required.
(xi) To such counsel's knowledge, lettersthere is no action, evidence and certificates mentioned above suit or elsewhere proceeding before or by any federal court or federal governmental agency or body, domestic or foreign, or any arbitrator, now pending or threatened in this Agreement shall be deemed writing against or affecting the Company, the Trust or any subsidiary which is required to be disclosed in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.Registration Statement (other than as
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective several obligations of the Underwriters hereunder are subject to the accuracy, when made and on the Delivery Date, accuracy of the representations and warranties on the part of each of the Company and Western Parties on the Parent Guarantor contained hereindate hereof, at the time of purchase to the performance by each of the Company and the Parent Guarantor Western Parties of its their obligations hereunder, hereunder and to each of the following additional terms and conditionsconditions precedent:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i4(a) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representativethis Agreement; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus Prospectuses or any part thereof shall have been issued and no proceeding or examination for such that purpose shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied withwith to the reasonable satisfaction of the Underwriters; and the Commission shall not have notified the Company Partnership of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Date that the The Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains does not contain an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material material, or omits does not omit to state a any fact which, in the opinion of such counsel, is material and is required to be stated therein or in the documents incorporated by reference therein or is necessary to make the statements therein not misleading, and the Prospectus or the Pricing Disclosure Package, or any supplement thereto, do not include an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material, or do not omit to state any fact which, in the opinion of such counsel, is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) All corporate partnership and limited liability company proceedings and other legal matters incident to the authorization, form execution and validity filing of this Agreement, the Securities, the Registration Statement, any Preliminary Prospectus, the Prospectus Prospectus, the Indenture and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor Partnership shall have furnished to such counsel all documents and information that they or their counsel may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP The Partnership shall have furnished to the Representative its written Representatives at the time of purchase an opinion and its 10b-5 letterof Xxxxxx Xxxxxx LLP, as U.S. counsel to for the Company and the Parent GuarantorPartnership, addressed to the Underwriters Underwriters, and dated the Delivery Datetime of purchase, with executed copies for each of the other Underwriters, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the form attached hereto as set forth in Exhibit A-3A hereto.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Underwriters shall have received from KPMG LLP a letterletter or letters, in form and substance satisfactory to the RepresentativeUnderwriters, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered public accountants 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 rules and regulations thereunder adopted by the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardPCAOB, and (ii) statingstating that, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Pricing Disclosure Package and the Prospectus, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hf) With respect to the letter or letters of KPMG LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Underwriters concurrently with the execution of this Agreement (the “initial KPMG letterletters”), the Parent Guarantor such accounting firm shall have furnished to the Representative Underwriters a letter (the “bring-down KPMG letter”) of such accountantsKPMG LLP, addressed to the Underwriters and dated the Delivery Date date of the time of purchase (i) confirming that they are an independent registered public accountants 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 rules and regulations thereunder adopted by the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardPCAOB, (ii) statingstating that, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three two business days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letterletters.
(ig) Each of the Company and the Parent Guarantor The Representatives shall have furnished received at the time of purchase the favorable opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, addressed to the Representative a certificateUnderwriters, and dated the Delivery Datetime of purchase in form and substance reasonably satisfactory to the Representatives.
(h) Prior to and at the time of purchase, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No no stop order suspending with respect to the effectiveness of the Registration Statement has shall have been issued; issued under the Securities Act and no proceedings or examination for that purpose shall have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company initiated under Section 8(d) or the Parent Guarantor, as applicable, of any objection to the use 8(e) of the form of Securities Act; (ii) neither the Registration Statement or nor any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not thereto shall contain any an untrue statement of a material fact and did not and do not or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (except iii) neither the most recent Preliminary Prospectus nor the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the case of the Registration Statementstatements therein, in the light of the circumstances under which they were are made) , not misleading; (iv) neither the Pricing Disclosure Package nor any amendment or supplement thereto shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (Bv) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Permitted Free Writing Prospectus that has shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not been so set forthmisleading.
(ji) The Underwriters shall have received an executed copy Between the time of execution of this Agreement and the Paying Agency Agreement.
time of purchase, (ki) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any no material adverse change, or any development involving developments that are reasonably likely to result in, individually or in the aggregate, a prospective material adverse change, in or affecting the business, assets, management, condition (financial or otherwise), prospects or results of operations, stockholders’ equity, properties, management, business or prospects operations of the Parent Guarantor and its subsidiaries, including the CompanyPartnership Entities, taken as a whole, shall have occurred or become known and (ii) no transaction which is material and adverse to the Partnership Entities, taken as a whole, shall have been entered into by any of the Partnership Entities or become probable, the effect of which, in any such case described in clause (i) or (ii), which is, in the judgment of the RepresentativeRepresentatives, so material and or adverse as to make it impracticable or inadvisable to proceed with the public offering Offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner Notes as contemplated in by the Prospectus.
(nj) Since the date hereofNo action shall have been taken and no statute, there rule, regulation or order shall not have occurred been enacted, adopted or issued by any downgrading with respect to any debt securities governmental agency or body which would, as of the Parent Guarantor time of purchase, prevent the issuance or sale of the Notes; and no injunction, restraining order or order of any of its subsidiaries, including the Company, other nature by any “nationally recognized statistical rating organization” federal or state court of competent jurisdiction shall have been issued as such term is defined in Section 3(a)(62) of the Exchange Act time of purchase which would prevent the issuance or any public announcement that any such organization has under surveillance or review its rating sale of any debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)the Notes.
(ok) Subsequent The Partnership and WES shall have delivered to the execution and delivery Representatives at the time of this Agreement, there shall not have occurred any purchase a certificate of the following: (i) trading in securities generally on the NYSE or in the over-the-counter market, or trading in any securities Chief Executive Officer and Chief Financial Officer of the Company or General Partner and WES GP, respectively, dated the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement time of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make itpurchase, in the judgment form attached as Exhibit B hereto.
(l) The Western Parties shall have furnished to the Representatives such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus as of the Representative, impracticable or inadvisable to proceed with time of purchase as the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 Representatives may reasonably satisfactory to counsel for the Underwritersrequest.
Appears in 1 contract
Samples: Underwriting Agreement (Western Midstream Partners, LP)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Selling Shareholders contained herein, to the performance by each of the Company and the Parent Guarantor Selling Shareholders of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesCustody Agreements, the Powers of Attorney, the Shares, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) Xxxxxx & Bird LLP shall have furnished to the Representative Representatives its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorCompany, together with a negative assurance letter, each addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, Exhibit B-1.
(e) A&L Goodbody shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative Representatives its written opinion, as Luxembourg Irish counsel to the Company, addressed to the Underwriters and dated the Delivery Date, substantially in the form attached hereto as Exhibit B-2.
(f) Each counsel for the respective Selling Shareholders shall have furnished to the Representatives its written opinion, as counsel to certain Selling Shareholders, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially in the forms form attached hereto as Exhibit A-4B-3.
(fg) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Date, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gh) At the time of execution of this Agreement, the Representative Representatives shall have received from Ernst & Young LLP and KPMG LLP a letterletters, each in form and substance reasonably satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are are, or, in the case of Ernst & Young LLP, as of the issuance of their audit report incorporated by reference in the Prospectus were, independent public accountants of Jazz Pharmaceuticals, Inc. and the Company, respectively, within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hi) With respect to the letter letters of Ernst & Young and KPMG LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the each an “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Representatives letters (each a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are are, or, in the case of Ernst & Young LLP, as of the issuance of their audit report incorporated by reference in the Prospectus were, independent public accountants of Jazz Pharmaceuticals, Inc. and the Company, respectively, within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the respective bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the respective bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the respective initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the respective initial KPMG letter.
(ij) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, representations and warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has complied in all material respects 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Dateits effective date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.;
(k) Application Each Selling Shareholder (or the Custodian or one or more attorneys-in-fact on behalf of the Selling Shareholders) shall have been made furnished to list the Notes Representatives on the NYSE for trading Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, such exchange andSelling Shareholder (or the Custodian or one or more attorneys-in-fact) stating that the representations, warranties and agreements of such Selling Shareholder in connection therewith, Section 2 are true and correct on and as of such Delivery Date and that such Selling Shareholder has complied with all its agreements contained herein and has satisfied all the Company shall have caused conditions on its part to be prepared and submitted performed or satisfied hereunder at or prior to the NYSE a listing application with respect to the Notessuch Delivery Date.
(l) The Securities shall be eligible for clearance Subsequent to the execution and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any delivery of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause this Agreement (i) or (ii), is, no downgrading shall have occurred in the judgment of rating accorded the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any Company’s debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, preferred stock by any “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62) of the Exchange Act or any public announcement that any Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any of the Company’s debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)or preferred stock.
(om) Subsequent The Lock-Up Agreements between the Company and the officers, directors and shareholders of the Company set forth on Schedule 3, delivered to the execution and delivery Representatives on or before the date of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered full force and effect on the Delivery Date on the terms and in the manner contemplated in the Prospectus. Date.
(n) 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 Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i5(a) hereof) required by Rule 433 ; the Company shall have been made, and no such filings shall have been made without the consent of the Representativecomplied with all filing requirements applicable to any Preliminary Prospectus or Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or 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 or pursuant to Section 8A of the Securities Act against the Company or related to the offering shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Company has not received any notice from the Commission shall not have notified pursuant to Rule 401(g)(2) of the Company of any objection Rules and Regulations objecting to the use of the form of the Registration Statementautomatic shelf registration statement form.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Pillsbury Xxxxxxxx Xxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesShares, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxxx X. Xxxxxx, Assistant General Counsel of Northeast Utilities Service Company and Xxx Xxxxxx & Bird LLP LLP, shall have furnished to the Representative its Underwriters their written opinion and its 10b-5 letteropinions, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms attached hereto as Exhibit A-4B-1 and Exhibit B-2, respectively.
(fe) The Representative Representatives shall have received from Xxxxx Pillsbury Xxxxxxxx Xxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gf) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG Deloitte & Touche LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus and the 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hg) With respect to the letter of KPMG Deloitte & Touche LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus and the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ih) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The stating that the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 1(a) hereof are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; effect set forth in Sections 7(a) and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto7(j) hereof; and
(iii) They stating that they have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(ji) The Underwriters shall have received an executed copy Since the date as of which information is given in the Pricing Disclosure Package and except as may otherwise be described in the Pricing Disclosure Package (including the documents incorporated by reference therein as of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange anddate hereof), in connection therewith, neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectustherein, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date date, there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholdersshareholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Shares being delivered on the such Delivery Date on the terms and in the manner contemplated in the ProspectusPricing Disclosure Package.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(oj) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in 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, with possible negative implications, its rating of any of the Company’s debt securities.
(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 NYSE New York Stock Exchange, the American Stock Exchange, the Nasdaq Stock Market, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union there shall have occurred any material disruption in commercial banking securities settlement or clearance services, (iv) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (ivv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result an escalation of terrorist activities after hostilities that existed prior to the date hereof of this Agreement (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Shares being delivered on the such Delivery Date on the terms and in the manner contemplated in the ProspectusPricing Disclosure Package.
(l) The New York Stock Exchange shall have approved the Shares for listing, subject only to official notice of issuance.
(m) The Lock-Up Agreements between the Representatives and the officers and trustees of the Company set forth on Schedule III, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date. 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 Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Selling Shareholders contained herein, to the performance by each of the Company and the Parent Guarantor Selling Shareholders of its their respective obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); 6(a) hereof, the Registration Statement and all post-effective amendments to the Registration Statement shall have become effective, all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 424 and Rule 430A of the Rules and Regulations shall have been made, made and no such filings shall have been made without the consent of the RepresentativeRepresentatives; no stop order suspending the effectiveness of the Registration Statement or preventing any amendment or supplement thereto or suspending the use qualification of the Prospectus Shares for offering or sale in any Issuer Free Writing Prospectus jurisdiction shall have been issued and issued; no proceeding or examination proceedings for the issuance of any such purpose order shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information (to be included in the Registration Statement or the Prospectus or otherwise otherwise) shall have been complied with; and the Commission shall not have notified the Company of any objection disclosed to the use of the form of the Registration StatementRepresentatives and complied with to their satisfaction.
(b) No Underwriter shall have been advised by the Company or shall have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, Statement or 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 Xxxxx Xxxx & Xxxxxxxx LLP, the Representatives or in the opinion of counsel for to the Underwriters, is material or omits to state a fact which, in the opinion of such counselthe Representatives or in the opinion of counsel to the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesSelling Shareholder Agreements, the Shares, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement Agreement, the Selling Shareholder Agreements and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) Xxxxxx & Bird LLP Xxxxxx L.L.P. shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its Representatives their written opinion, as Luxembourg counsel to for the Company, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially with respect to the matters set forth in Exhibit B hereto.
(e) Xxxxxx & Xxxxxx L.L.P. shall have furnished to the forms attached hereto Representatives their written opinion, as counsel for the Selling Shareholders, addressed to the Underwriters and dated such Delivery Date, in form and substance satisfactory to the Representatives, with respect to the matters set forth in Exhibit A-4C hereto.
(f) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “' "comfort letters” " to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “"initial KPMG letter”"), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “"bring-down KPMG letter”") of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three five days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each The Representatives shall have received from the Company's independent natural gas and oil engineers, a letter or letters dated, respectively, the date of this Agreement and the Closing Date, in form and substance satisfactory to the Representatives, each stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which information regarding the natural gas and oil reserves and future net cash flows is given in the Prospectus, as of the date not more than five days prior to the date of such letter), the conclusions and findings of such firm with respect to the natural gas and oil reserves of the Company and such other matters as the Parent Guarantor Representatives reasonably may request.
(j) On each Delivery Date, there shall have been furnished to the Representative Representatives a certificate, dated such Delivery Date and addressed to the Delivery DateRepresentatives, of a director, in the case signed on behalf of the Company, and the Company by its Chief Executive Officer or President and the its Chief Financial Officer, in to the case of the Parent Guarantor, stating that:
effect that (i) The the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, contained in Section 1 this Agreement are true and correct on correct, as if made at and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has complied with all its the agreements contained herein and satisfied all the conditions on its part to be performed complied with or satisfied hereunder at or prior to the such Delivery Date;
; (ii) No no stop order suspending the effectiveness of the Registration Statement has been issued; , and no proceedings or examination proceeding for that purpose have has been instituted or, to the knowledge of such persons, initiated or threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They the signers of said certificate have carefully examined the Registration Statement, Statement and the Prospectus and the Pricing Disclosure Packageany amendments or supplements thereto, andand such documents contain all statements and information required to be included therein, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain include any untrue statement of a material fact and did not and do not or omit to state a any material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and ; (Biv) since the Effective Date, Date there has occurred no event has occurred that should have been required to be set forth in a an amendment or supplement or amendment to the Registration Statement, Statement or the Prospectus or any Issuer Free Writing Prospectus that which has not been so set forth.
; and (jv) The Underwriters no event contemplated by subsection (l) of this Section 9 in respect of the Company or any Subsidiary shall have received an executed copy of the Paying Agency Agreementoccurred.
(k) Application Each Selling Shareholder (or one or more Attorneys-in-Fact on behalf of such Selling Shareholder) shall have been made furnished to list the Notes Representatives on the NYSE for trading Second Delivery Date a certificate, dated the Second Delivery Date, signed by, or on behalf of, such exchange andSelling Shareholder stating that the representations, in connection therewith, warranties and agreements of such Selling Shareholder contained herein are true and correct as of the Company shall have caused Second Delivery Date and that such Selling Shareholder has complied with all agreements contained herein to be prepared and submitted performed by such Selling Shareholder at or prior to the NYSE a listing application with respect to the NotesSecond Delivery Date.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither Since the Parent GuarantorEffective Date, neither the Company nor any of its subsidiaries, including the Company, Subsidiary shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, sustained any loss or interference with its business from by fire, flood, explosion, flood accident or other calamity, whether or not covered by insurance, which is materially adverse to the Company and the Subsidiaries taken as a whole, or from shall have become a party to or the subject of any labor dispute or litigation, court or governmental action, investigation, order or decree or (ii) since such date which is materially adverse to the Company and the Subsidiaries taken as a whole; nor shall there shall not have been any a change in the capital stock stock, a material change in the short-term debt or a material change in the long-term debt of any of the Parent Guarantor Company and the Subsidiaries taken as a whole or any of its subsidiaries, including the Company, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (general affairs, operations, business, prospects, management, capitalization, financial or otherwise)condition, results of operations, stockholders’ equity, properties, management, business operations or prospects net worth of the Parent Guarantor Company and its subsidiaries, including the Company, Subsidiaries taken as a whole, the effect of whichwhich loss, in any such case described in clause (i) interference, litigation, action, investigation, order, decree, change or (ii), isdevelopment, in the judgment judgement of the RepresentativeRepresentatives, so material and adverse as to make shall render it impracticable impractical or inadvisable to proceed with the public offering or the payment for and delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the ProspectusShares.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(om) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the NYSE New York Stock Exchange, the American Stock Exchange or Nasdaq or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, which makes 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; (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, ; (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States which makes 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; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof conditions (or the effect of international conditions on the financial markets in the European Union or United States shall be such), ) as to make it, in the judgment of a majority in interest of the Representativeseveral Underwriters, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Shares being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) The Nasdaq shall have approved the Shares for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(o) The Representatives shall have been furnished by the Company and the Selling Shareholders such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All such opinions, letterscertificates, evidence letters and certificates mentioned above or elsewhere in this Agreement documents shall be deemed to be in compliance with the provisions hereof only if they are satisfactory in form and substance reasonably satisfactory to the Representatives and to counsel for the Underwriters. The Company and the Selling Shareholders shall furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as they shall reasonably request. If any of the conditions specified in this Section 9 shall not have been fulfilled, when and as required by this Agreement, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, each Delivery Date, by the Representatives. Any such cancellation shall be without liability of the Underwriters to the Company, the Selling Shareholders or any of their respective affiliates. Notice of such cancellation shall be given to the Company and the Selling Shareholders in writing, or by telegraph or telephone and confirmed in writing.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Selling Stockholders contained herein, to the performance by each of the Company and the Parent Guarantor Selling Stockholders of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 . The Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx Dxxxx Xxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesCustody Agreements, the Powers of Attorney, the Stock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) Xxxxxx & Bird Oxxxxx Frome Wxxxxxx LLP shall have furnished to the Representative its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor.
(e) Sxxxx Wxxxxxxx PLLC, shall have furnished to the Representative his its written opinion, at as Nevada counsel to the request of the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(ef) Xxxxxx & Xxxxxxxxx X.X. Aviv Hillo, the Company’s General Counsel, shall have furnished to the Representative its his written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(fg) The counsel for the Selling Stockholders shall have furnished to the Representative its written opinion, as counsel to the Selling Stockholders for whom it is acting as counsel, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representative.
(h) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx Dxxxx Xxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 negative assurance letter, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gi) At the time of execution of this Agreement, the Representative shall have received from KPMG Mxxxxx LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hj) With respect to the letter of KPMG Mxxxxx LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ik) Each of the The Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial OfficerOfficer as to such matters as the Representative may reasonably request, in the case of the Parent Guarantorincluding, stating thatwithout limitation, a statement:
(i) The That the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No That 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 personsofficers, threatened; threatened and the Commission has shall not have notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and;
(iii) They That they have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.; and
(jiv) The Underwriters shall have received an executed copy To the effect of the Paying Agency Agreement.
Section 9(m) (k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application provided that no representation with respect to the Notesjudgment of the Representative need be made) and Section 9(n).
(l) The Securities Each Selling Stockholder (or the Custodian or one or more attorneys-in-fact on behalf of the Selling Stockholders) shall have furnished to the Representative on such Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, the Selling Stockholder (or the Custodian or one or more attorneys-in-fact) stating that the representations, warranties and agreements of the Selling Stockholder contained herein are true and correct on and as of such Delivery Date and that the Selling Stockholder has complied with all its agreements contained herein and has satisfied all the conditions on its part to be eligible for clearance and settlement through Clearstream and Euroclearperformed or satisfied hereunder at or prior to such Delivery Date.
(m) Each Selling Stockholder (or the Custodian or one or more attorneys-in-fact on behalf of such Selling Stockholder) shall have furnished to the Representative on such Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, such Selling Stockholder (or the Custodian or one or more attorneys-in-fact) stating that such Selling Stockholder has examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, to its knowledge, (i) (A) the Registration Statement, as of the Effective Date, (B) the Prospectus, as of its date and on the applicable Delivery Date, and (C) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (ii) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(i) Neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its 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 decree, or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(o) Subsequent to the execution and delivery of this AgreementAgreement (i) no downgrading shall have occurred in the rating accorded the Company’s securities by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s securities.
(p) 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 NYSE Commission under Section 6 of the Exchange Act (including the New York Stock Exchange, The Nasdaq Global Select Market, The Nasdaq Global Market or in the over-the-counter marketThe Nasdaq Capital Market), or (B) trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or 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 Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(q) The Nasdaq Capital Market shall have approved the Stock for inclusion, subject only to official notice of issuance.
(r) The Lock-Up Agreements between the Representative and the officers, directors and stockholders of the Company set forth on Schedule III, delivered to the Representative on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(s) On or prior to each Delivery Date, the Company shall have furnished to the Underwriters such further certificates and documents as the Representative may reasonably request.
(t) 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
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters Underwriter on each Delivery Date hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company Trust and the Parent Guarantor Operating Partnership contained herein, to the performance by each of the Company and the Parent Guarantor Trust of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i5(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus part thereof shall have been issued and no proceeding or examination for such that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company Trust on or prior to the such Delivery Date that the Registration Statement, Statement or 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 Xxxxx Xxxx & Xxxxxxxx Chance US LLP., counsel for the UnderwritersUnderwriter, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesShares, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the UnderwritersUnderwriter, and the Company and the Parent Guarantor Trust shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d)(1) Xxxxx & Xxxxxxx L.L.P. shall have furnished to the Underwriter its written opinion, as counsel to the Trust and the Operating Partnership, addressed to the Underwriter and dated the First Delivery Date (on the Second Delivery Date, Xxxxx & Xxxxxxx L.L.P. shall have furnished only the opinion specified in (C) below, with respect to the Option Shares), in form and substance reasonably satisfactory to the Underwriter, to the effect that:
(A) The Trust is a validly subsisting organization under the laws of the Commonwealth of Pennsylvania as of May 22, 2003, is duly qualified to do business and is in good standing in each jurisdiction listed on a schedule to the opinion and has all business trust power necessary to own and hold its properties and to conduct its business of acquiring, developing, redeveloping and operating retail real property;
(B) The Operating Partnership is a validly existing limited partnership in good standing under the laws of the State of Delaware, is duly qualified to do business and is in good standing in each jurisdiction listed on a schedule to the opinion and has the partnership power and partnership authority under the limited partnership agreement of the Operating Partnership and the Delaware Revised Uniform Limited Partnership Act (the "Delaware Act") necessary to conduct its business of acquiring, developing, redeveloping and operating retail real property;
(C) When issued and paid for in accordance with the provisions of this Agreement, the Shares will be validly issued, fully paid and non-assessable. The Shares conform as to legal matters in all material respects to the description thereof incorporated by reference in the Prospectus under the caption "Description of PREIT Shares of Beneficial Interest."
(D) No holder of outstanding common shares of beneficial interest of the Trust has any statutory preemptive right under the Pennsylvania Business Trust Law or, to our knowledge, any contractual right to subscribe for any of the Shares under such agreements set forth on Schedule II hereto.
(E) The Registration Statement has become effective under the Securities Act, the required filings of the Prospectus pursuant to Rule 424(b) promulgated pursuant to the Securities Act have been made in the manner and within the time period required by Rule 424(b) and, to our knowledge, no stop order suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus has been issued and no proceedings for that purpose have been instituted or are threatened by the Securities and Exchange Commission.
(F) The Registration Statement and the Prospectus (except for the financial statements and supporting schedules included therein, as to which counsel expresses no opinion) comply as to form in all material respects with the requirements of the Securities Act and the applicable Rules and Regulations thereunder; and the documents incorporated by reference in the Prospectus and any further amendment or supplement to any such incorporated document made by the Trust prior to such Delivery Date (other than the financial statements and supporting schedules included therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder;
(G) The information in the Trust's Current Report on Form 8-K filed with the Securities and Exchange Commission on August 15, 2003 and incorporated by reference in the Prospectus, under the captions "Federal Income Tax Considerations to PREIT Shareholders," "Risk Regarding Our Merger With Crown American Realty Trust -PREIT could be disqualified as a REIT or have to pay taxes if Crown does not qualify as a REIT at the time of the merger" and "—Recent change in taxation of corporate dividends may adversely affect the value of PREIT's shares," to the extent that such information describes federal statutes, rules and regulations, constitutes a fair summary thereof;
(H) This Agreement has been duly authorized, executed and delivered on behalf of the Trust and the Operating Partnership;
(I) The execution, delivery and performance on the Delivery Date by the Trust and the Operating Partnership of this Agreement do not (i) violate (a) in the case of the Trust, the Pennsylvania Business Trust Law, applicable federal law, the trust agreement or bylaws of the Trust, or (b) in the case of the Operating Partnership, the Delaware Act, applicable federal law or the limited partnership agreement of the Operating Partnership, or (ii) breach or constitute a default under any agreement or contract to which the Trust or the Operating Partnership is a party that is listed on Schedule II attached hereto (except that we express no opinion as to financial covenants in such agreements and contracts);
(J) No approval or consent of, or registration or filing with, any federal governmental agency or the office of the Secretary of State of the State of Delaware or the Department of State of the Commonwealth of Pennsylvania is required to be obtained or made by the Trust or the Operating Partnership under applicable federal law, the Delaware Act or Pennsylvania Business Trust Law in connection with the execution, delivery and performance at the Delivery Date of this Agreement, except such as have been obtained under federal securities laws and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase or distribution of the Shares by the Underwriter in the manner contemplated in the Prospectus;
(K) Except as described in the Prospectus, to the knowledge of such counsel, there are no contracts, agreements or understandings between the Trust and any person granting such person the right to require the Trust to file a registration statement under the Securities Act with respect to any securities of the Trust owned or to be owned by such person or to require the Trust to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Trust under the Securities Act; and
(L) The Trust and the Operating Partnership are not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus, will not be as of the First Delivery Date, an "investment company" as defined in the Investment Company Act of 1940, as amended. Such counsel shall also deliver to the Underwriter a statement to the effect that, while such counsel has not undertaken to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Prospectus, on the basis of conferences in which it has participated and its activities as special counsel to the Trust and Operating Partnership in connection with this Agreement, no facts have come to its attention which cause it to believe that the Registration Statement as of the date hereof contained an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus as of the date hereof or as of the First Delivery Date contained or contains an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, provided that in making the foregoing statement (which shall not constitute an opinion), such counsel need not express any views as to the financial statements and supporting schedules and other financial information included or incorporated by reference in or omitted from the Prospectus.
(d) (2) Drinker Xxxxxx & Bird Xxxxx LLP shall have furnished to the Representative Underwriter its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company Trust and the Parent GuarantorOperating Partnership, addressed to the Underwriters Underwriter and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at effect that:
(A) The Trust has been organized and has operated in conformity with the request requirements for qualification as a REIT under the Code for each taxable year beginning with its taxable year ended 1996 and Trust's proposed method of operation and capital structure will enable it to continue to meet the Company requirements for qualification and taxation as a REIT under the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3Code.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx Chance US LLP, counsel for the UnderwritersUnderwriter, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Underwriter may reasonably require, and the Company and the Parent Guarantor Trust shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 (Pennsylvania Real Estate Investment Trust)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the Delivery date of the Prospectus and on the Closing Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to ) and Section 5(a)(i5(a)(iv) hereof) required by Rule 433 ; the Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 or pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or any document incorporated by reference therein or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration StatementStatement or any post-effective amendment thereto.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Closing Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the reasonable opinion of Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesShares, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Xxxxxxxx & Bird Xxxxxxxx LLP shall have furnished to the Representative Underwriters its written opinion and its 10b-5 separate negative assurance letter, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and delivered and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially in addressing the forms matters set forth on Exhibit A attached hereto as Exhibits A-1 and A-2. R. hereto.
(e) Xxxxx X. Xxxxxx, Executive Vice President—Business Strategy /Chief Legal and General Counsel Administrative Officer and Corporate Secretary of the Parent GuarantorCompany, shall have furnished to the Representative his Underwriters her written opinion, at the request of the Company and the Parent Guarantor, opinion addressed to the Underwriters and delivered and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially in addressing the form matters set forth on Exhibit B attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4hereto.
(f) The Representative Representatives shall have received from Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Closing Date, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG PricewaterhouseCoopers LLP a letter, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and the Company and dated the date hereof (i) confirming that they are independent registered 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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG PricewaterhouseCoopers LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor PricewaterhouseCoopers LLP shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and the Company and dated the Delivery Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, Commission; (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three two days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letter; (iii) covering financial information in the Prospectus; and (iiiiv) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each At the time of the execution of this Agreement and on the Closing Date, the Representatives shall have received a certificate of the Chief Financial Officer of the Company, dated as of such date, in a form reasonably satisfactory to the Representatives.
(j) The Company shall have furnished to the Representatives a certificate, dated the Closing Date, of any vice-president of the Company and the Parent Guarantor shall have furnished principal financial officer, vice president/treasurer or principal accounting officer of the Company satisfactory to the Representative a certificate, dated Representatives to the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating effect that:
(i) The representations, representations and warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct with the same force and effect as though expressly made on and as of the Delivery Closing Date or any Additional Closing Date, and each of the Company and the Parent Guarantor, as applicable, and the Company has complied with in all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Delivery Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose or pursuant to Section 8A under the Securities Act have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the each Effective Date, (2) the Prospectus, as of its date and on as of the Delivery Closing Date, or and (3) the Pricing Disclosure Package, as of the Applicable TimeTime and as of the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list Except as described in the Notes on Pricing Disclosure Package and the NYSE for trading on such exchange andProspectus, in connection therewith, (i) neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference respective dates as of which information is given in the most recent Preliminary ProspectusPricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock stock; or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects properties of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the reasonable judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery sale of the Securities Shares being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the ProspectusPricing Disclosure Package, the Prospectus or this Agreement.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ol) 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 NYSE Exchange or in the over-the-counter marketNASDAQ National Market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state authorities; or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or States, there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) States, there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery sale of the Securities Shares being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the ProspectusPricing Disclosure Package, the Prospectus or this Agreement.
(m) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares.
(n) The Shares to be delivered on the Closing Date or the Additional Closing Date, as the case may be, shall have been approved for listing on the Exchange, subject to official notice of issuance.
(o) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between you and certain officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be full force and effect on the Closing Date or the Additional Closing Date, as the case may be.
(p) On or prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall have furnished to the Representatives such further certificates and documents as the 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 (Southwest Gas Holdings, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are to purchase the Securities shall be subject to the accuracy, when made and on the Delivery Date, accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time and the Parent Guarantor contained hereinClosing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Prospectus Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d), shall have been timely filed with the Commission in accordance with Section 5(a)(i); all within the applicable time periods prescribed for such filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, 433; and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the any notice objecting to its use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination proceedings for such that purpose shall have been initiated instituted or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statementthreatened.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Closing Date that the Registration Statement, the Prospectus Disclosure Package or the Pricing Disclosure Package, Final Prospectus or any amendment or supplement thereto, thereto contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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 (in the case of the Disclosure Package or the Final Prospectus, in the light of the circumstances under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Indenture, the Securities, the Registration Statement, the Prospectus Disclosure Package and any Issuer Free Writing the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby hereby, shall be reasonably satisfactory in all material respects to counsel for the UnderwritersXxxxx Xxxx & Xxxxxxxx LLP, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird Sidley Austin LLP and Xxxxxxxxx X. Xxxxxxxxxx, Esq. shall each have furnished to the Representative its Representatives their written opinion and its 10b-5 letteropinion, as U.S. counsel and General Counsel to the Company and the Parent GuarantorCompany, respectively, addressed to the Underwriters and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 7(d)(A) and A-2. R. Xxxxx Xxxxxx7(d)(B), Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3respectively.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus Disclosure Package and the Pricing Disclosure Package Final Prospectus and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gf) At the time of execution of this AgreementApplicable Time and at the Closing Date, the Representative KPMG LLP shall have received from KPMG LLP a letterfurnished to the Representatives letters, dated respectively as of the Applicable Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representative, addressed to the Underwriters Representatives and dated the date hereof (i) confirming that they are independent public accountants within the meaning containing statements and information of the Securities Act and are type customarily included in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters with respect to the financial statements and certain financial information with respect to the Company contained in connection with registered public offeringsthe Disclosure Package and the Final Prospectus. All references in this Section 7(f) to the Disclosure Package and the Final Prospectus include any amendment or supplement thereto at the date of the applicable letter.
(hg) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor The Company shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the Delivery Closing Date, of a director, in the case its Chairman of the CompanyBoard, its President or a Vice President and its chief financial officer or chief accounting officer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and the Chief Executive Officer this Agreement and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, Closing Date with the same effect as if made on the Closing Date and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement has been issued; issued and no proceedings or examination for that purpose have been instituted or are pending or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use respective signers of the form of certificate, are contemplated under the Registration Statement or any post-effective amendment theretoAct; and
(iii) They have carefully examined since the Registration Statement, date of the Prospectus most recent financial statements included in the Disclosure Package and the Pricing Disclosure PackageFinal Prospectus (exclusive of any supplement thereto), andthere has been no Material Adverse Change, in their opinion, (A) (1) the Registration Statement, except as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forththereto).
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(mh) Neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, Disclosure Package and the Final Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree decree, otherwise than as set forth or (ii) contemplated in the Disclosure Package and the Final Prospectus, and since such date there shall not have been any material change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any changeMaterial Adverse Change, otherwise than as set forth or any development involving a prospective change, contemplated in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of Disclosure Package and the Parent Guarantor and its subsidiaries, including the Company, taken as a wholeFinal Prospectus, the effect of which, in any such case described in clause (i) or (ii), which is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the ProspectusDisclosure Package and the Final Prospectus or in a supplement thereto.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(oi) Subsequent to the execution and delivery of this AgreementAgreement (i) no downgrading shall have occurred in 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 Section 3(a)(62) under the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities.
(j) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the NYSE or in the over-the-counter marketNew York Stock Exchange, or trading in any securities of the Company or on the Parent Guarantor on any exchange or in the over-the-counter marketNew York Stock Exchange, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market the New York Stock Exchange, by the Commission, by such exchange the New York Stock Exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal Federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or affecting the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof conditions (or the effect of international conditions on the financial markets in the European Union or United States shall be such), ) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the ProspectusDisclosure Package and the Final Prospectus or in a supplement thereto. 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 specified in this Section 7 shall not have been fulfilled 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 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 at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the Closing Date.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no No stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or including any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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 (in the case of the Prospectus or the Pricing Disclosure Package, in light of the circumstances under which such statements were made) not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) Xxxxxx Xxxxxxx Xxxxxxx & Bird Xxxxxxxx LLP shall have furnished to the Representative Representatives its written opinion and its 10b-5 negative assurance letter, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, Representatives.
(e) Xxxxxx LLP shall have furnished to the Representative his Representatives their written opinion, at the request as counsel to each of the Company and the Parent GuarantorSelling Stockholders for whom they are acting as counsel, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3Representatives.
(ef) Xxxxxx Xxxxxxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its Representatives their written opinion, as Luxembourg counsel to the CompanyWorkday, Inc., addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4Representatives.
(fg) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLPXxxxxxxx, counsel for the Underwriters, such opinion and 10b-5 negative assurance letter, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gh) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG Deloitte & Touche LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus, as of a date not more than three two business days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hi) With respect to the letter of KPMG Deloitte & Touche LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three two business days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ij) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial OfficerOfficer as to such matters as the Representatives may reasonably request, in the case of the Parent Guarantorincluding, stating thatwithout limitation, a statement:
(i) The That the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct in all material respects (or, where such representations and warranties are already qualified as to materiality, in all respects) on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has complied with all its agreements contained herein and satisfied in all material respects all the conditions on its part to be performed or satisfied hereunder at or prior to the such Delivery Date;
(ii) No That 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 personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and;
(iii) They That they have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.; and
(jiv) The Underwriters shall have received an executed copy To the effect of Section 9(l) (provided that no representation with respect to the judgment of the Paying Agency AgreementRepresentatives need be made) and Section 9(m).
(k) Application Each Selling Stockholder shall have been made furnished to list the Notes on the NYSE for trading Representatives on such exchange andDelivery 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 Selling Stockholder contained herein are true and correct in all material respects (or, where such representations and warranties are already qualified as to materiality, in connection therewith, all respects) on and as of such Delivery Date and that the Company shall have caused Selling Stockholder has complied with all its agreements contained herein and has satisfied in all material respects all the conditions on its part to be prepared and submitted performed or satisfied hereunder at or prior to the NYSE a listing application with respect to the Notessuch Delivery Date.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
Except as described in the most recent Preliminary Prospectus, (mi) Neither neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its 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 decree, or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, or business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), 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 public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(nm) Since Subsequent to the date hereof, there execution and delivery of this Agreement (i) no downgrading shall not have occurred any downgrading with respect to any debt securities of in the Parent Guarantor or any of its subsidiaries, including rating accorded the Company, ’s securities by any “nationally recognized statistical rating organization” (as such term is defined by the Commission in Section 3(a)(62) of the Exchange Act or any public announcement that any Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)the Company’s securities.
(on) Subsequent to the execution and delivery of this Agreement, 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 NYSE Commission under Section 6 of the Exchange Act (including the New York Stock Exchange, The Nasdaq Global Select Market, The Nasdaq Global Market or in the over-the-counter marketThe Nasdaq Capital Market), or (B) trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such) or any other calamity or crisis, either within or outside the United States, in each case with respect to clauses (i) through (iv), as to make it, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(o) [Reserved.]
(p) The Lock-Up Agreements between the Representatives and the officers, directors and Selling Stockholders of the Company set forth on Schedule III, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(q) The Representatives shall have received (i) on and as of the date hereof and (ii) on and as of each Delivery Date, as the case may be, a certificate of the Chief Financial Officer of the Company in a form reasonably satisfactory to the Representatives.
(r) On or prior to each Delivery Date, the Company shall have furnished to the Underwriters such further certificates and documents as the 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 Underwriters Underwriter hereunder are subject to the accuracy, when made and on the Delivery Date, of the representations and warranties of the Company Partnership Parties and the Parent Guarantor Selling Unitholders contained herein, to the performance by each of the Company Partnership Parties and the Parent Guarantor Selling Unitholders of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Partnership Parties shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 that purpose shall have been initiated or threatened by the Commission; and the Prospectus shall comply with any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statementotherwise.
(b) No The Underwriter shall not have discovered and disclosed to any of the Company Partnership Parties on or prior to the Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for the UnderwritersUnderwriter, is material or omits to state 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.
(c) All corporate corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesUnits, the Transaction Documents, the Registration Statement, the Prospectus and any Issuer Free Writing 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 UnderwritersUnderwriter, and the Company and the Parent Guarantor Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP Xxxxxx L.L.P. shall have furnished to the Representative Underwriter its written opinion and its 10b-5 letteropinions, as U.S. counsel to for the Company Partnership and the Parent GuarantorSelling Unitholders, addressed to the Underwriters Underwriter and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, substantially in the form attached hereto as Exhibit A-3A-1 and Exhibit A-2, respectively.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 Underwriters Underwriter hereunder on each Delivery Date are subject (x) to the accuracy, accuracy when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Selling Stockholder contained hereinherein (provided that, in the case of this clause (x), the obligations of the Underwriter hereunder shall be subject to the accuracy in all material respects of those representations and warranties that are not qualified as to materiality), (y) to the performance by each of the Company and the Parent Guarantor Selling Stockholder of its their respective obligations hereunder, hereunder and (z) to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus part thereof shall have been issued and no proceeding or examination for such that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No The Underwriter shall not have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, Statement or 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 Xxxxx Xxxx & Xxxxxxxx LLPXxxxxxxxxx Xxxxxxx PC, counsel for the UnderwritersUnderwriter, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesCustody Agreement, the Shares, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the UnderwritersUnderwriter, and the Company and the Parent Guarantor 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) Xxxxxxxx Xxxxxx Xxxxxxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letterXxxxxxxxx, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent GuarantorLLP, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative Underwriter its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters Underwriter and dated the such Delivery Date, in substantially the form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.C.
(fe) The Representative shall have received from Xxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx, LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to the Underwriter its written opinion, as counsel to the Selling Stockholder, addressed to the Underwriter and dated such counsel such documents Delivery Date, in substantially the form attached hereto as they reasonably request for the purpose of enabling them to pass upon such matters.Exhibit D.
(gf) At the time of execution of this Agreement, the Representative Underwriter shall have received from KPMG Deloitte & Touche, LLP a letter, in form and substance satisfactory to the RepresentativeUnderwriter, addressed to the Underwriters Underwriter and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “' "comfort letters” " to Underwriters underwriters in connection with registered public offerings.
(hg) With respect to the letter of KPMG Deloitte & Touche LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Underwriter concurrently with the execution of this Agreement (the “"initial KPMG letter”"), the Parent Guarantor Company shall have furnished to the Representative Underwriter a letter (the “"bring-down KPMG letter”") of such accountants, addressed to the Underwriters Underwriter and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three five days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ih) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Underwriter a certificate, dated the such Delivery Date, of a director, in the case of the Company, its President and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, its chief financial officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery DateDate (provided that such representations, warranties and each of agreements that are not qualified as to materiality shall be true in all material respects); the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatenedherein; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment theretoconditions set forth in Sections 9(a) and 9(l) have been fulfilled; and
(iiiii) They have carefully examined the Registration Statement, Statement and the Prospectus and the Pricing Disclosure Package, and, in their opinion, opinion (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date Registration Statement and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, Prospectus did not and do not contain include any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, Date no event has occurred that which should have been set forth in a supplement or amendment to the Registration StatementStatement or the Prospectus.
(i) The Selling Stockholder shall have furnished to the Underwriter a certificate, dated such Delivery Date, signed by, or on behalf of, the Prospectus Selling Stockholder stating that the representations, warranties and agreements of the Selling Stockholder in Section 2 are true and correct as of such Delivery Date (provided that such representations, warranties and agreements that are not qualified as to materiality shall be true in all material respects); and that the Selling Stockholder has complied with all agreements contained herein required to be complied with by the Selling Stockholder on or any Issuer Free Writing Prospectus that has not been so set forthprior to such Delivery Date.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, Neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, Prospectus (i) 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 decree, otherwise than as set forth or contemplated in the Prospectus or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company and its subsidiaries on a consolidated basis or any of its subsidiaries, including the Company, or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, propertiesgeneral affairs, management, business financial position, stockholders' equity or prospects results of operations of the Parent Guarantor Company and its subsidiaries, including otherwise than as set forth or contemplated in the Company, taken as a wholeProspectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeUnderwriter, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Shares being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ok) 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 NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-the- counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal Federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof conditions (or the effect of international conditions on the financial markets in the European Union or United States shall be such), ) as to make it, in the judgment of the RepresentativeUnderwriter, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Shares being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(l) The Shares shall be listed on the Nasdaq National Market System.
(m) Prior to the First Delivery Date, the Underwriter shall have received from the Selling Stockholder and from each executive officer and director of the Company, an executed letter in the form of Exhibit A or Exhibit B, as applicable, pursuant to Section 6(i) hereto. 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 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Selling Stockholders contained herein, to the performance by each of the Company and the Parent Guarantor Selling Stockholders of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Ropes & Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesCustody Agreements, the Powers of Attorney, the Stock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) Xxxxxx & Bird Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP shall have furnished to the Representative Representatives its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel Exhibit B-1.
(e) The respective counsel for each of the Parent Guarantor, Selling Stockholders shall have furnished to the Representative his Representatives its written opinion, at the request as counsel to each of the Company and the Parent GuarantorSelling Stockholders for whom it is acting as counsel, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4B-2.
(f) The Representative Representatives shall have received from Xxxxx Ropes & Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG Deloitte & Touche LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG Deloitte & Touche LLP referred to in Section 7(g9(g) above, and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.;
(j) The Underwriters Each Selling Stockholder (or the Custodian or one or more attorneys-in-fact on behalf of the Selling Stockholders) shall have received an executed copy furnished to the Representatives on such Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, the Selling Stockholder (or the Custodian or one or more attorneys-in-fact) stating that the representations, warranties and agreements of the Paying Agency AgreementSelling Stockholder contained herein are true and correct on and as of such Delivery Date and that the 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.
(k) Application The Executive Selling Stockholder (or the Custodian or one or more attorneys-in-fact on behalf of the Executive Selling Stockholder) shall have been made furnished to list the Notes on the NYSE for trading Representatives on such exchange andDelivery Date a certificate, in connection therewithdated such Delivery Date, signed by, or on behalf of, such Executive Selling Stockholder (or the Custodian or one or more attorneys-in-fact) stating that such Executive Selling Stockholder has reviewed this Agreement, the Company shall have caused Registration Statement and the Pricing Disclosure Package and has no reason to believe (i) the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state a material fact required to be prepared stated therein or necessary to make the statements therein not misleading, or (ii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein in the light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement or Pricing Disclosure Package in reliance upon and submitted in conformity with written information furnished to the NYSE a listing application with respect to Company through the NotesRepresentatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f).
(li) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(om) 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 NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) The Lock-Up Agreements between the Representatives and the officers, directors and Selling Stockholders, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(o) Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement, if there are any debt securities or preferred stock of, or guaranteed by, the Company or any of its subsidiaries that are rated by a “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, (i) no downgrading shall have occurred in the rating accorded any such debt securities or preferred stock and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any such debt securities or preferred stock (other than an announcement with positive implications of a possible upgrading). 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 Underwriters hereunder are subject to the accuracy, when as of the date hereof and at each of the Closing Date (as if made and on the Delivery at such Closing Date), of and compliance with, the representations representations, warranties and warranties agreements of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus Registration Statement shall have become effective not later than 5:00 p.m., Minneapolis time, on the date hereof, or such later time and date as the Underwriters shall approve and all filings required by Rule 424, 430A and 434 of the Rules and Regulations shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus amendment thereof shall have been issued under the Act; no proceedings for the issuance of such an order shall be pending or threatened; and no proceeding or examination for such purpose shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information (to be included in the Registration Statement or the Prospectus or otherwise otherwise) shall have been complied with; and the Commission shall not have notified the Company of any objection with to the use of the form of the Registration Statementyour reasonable satisfaction.
(b) No Underwriter shall have discovered and disclosed to advised the Company on or prior to the Delivery Date that the Registration Statement, the Prospectus Statement or the Pricing Disclosure PackageProspectus, or any amendment thereof or supplement theretothereto (including any term sheet within the meaning of Rule 434 of the Rules and Regulations), contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwritersyour reasonable opinion, is material or omits to state a fact which, in the opinion of such counselyour opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and such misstatement or omission has not been corrected.
(c) All corporate proceedings and other legal matters incident Except as contemplated or disclosed in the Prospectus or the Registration Statement, subsequent to the authorizationrespective dates as of which information is given in the Registration Statement and Prospectus, the Company and its subsidiaries 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, except regular quarterly cash dividends declared by the Board of Directors of the Company and paid by the Company in the ordinary course of business in accordance with the dividend policy established by the Board of Directors; and there shall not have been any change in the capital stock of the Company or its subsidiaries (except for the issuance of shares pursuant to the employee benefit plans of, or as compensation to the directors of, the Company and the Bank) or any material increase in the short-term or long-term debt, including capitalized lease obligations, of the Company or its subsidiaries (except such increases as are incurred in the ordinary course of business and are not material to the condition, financial or otherwise, of the Company and its subsidiaries considered as a whole), or any issuance of options, warrants, convertible securities or other rights to purchase capital stock of the Company or the subsidiaries (except for securities granted pursuant to the Company's employee benefit plans), or any material adverse change in the condition (financial or otherwise) of the Company or the subsidiaries, or in the financial results, business affairs or business prospects of the Company or the subsidiaries that, in your judgment, makes it impractical or inadvisable to offer or deliver the Notes on the terms and in the manner contemplated in the Prospectus.
(d) On Closing Date there shall have been furnished to the Underwriters, the opinion of Xxxxxxx Xxxxxxxxx and Xxxxxxxxx, P.C., special counsel for the Company, dated the Closing Date to the effect set forth in Appendix A.
(e) On the Closing Date there shall have been furnished to the Underwriters, the opinion of Xxxxxxxxxx, Xxxxxx, Xxxxxxxxxx & Xxxxxxx, counsel for the Company, dated the Closing Date and in form and validity 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 this the State of Nebraska. The Company is duly registered as a savings and loan holding company under Section 10 of the Home Owner's Loan Act, as amended ("HOLA"). The Bank has been duly organized and is validly existing as a federal savings bank chartered under HOLA. Each of the Significant Subsidiaries has each been duly organized and is validly existing as a corporation in good standing under the laws of the state of its jurisdiction. The Company and each of the Significant Subsidiaries has full corporate power and authority to own its properties and conduct its business as it is currently being carried on and as described in the Prospectus. The Company and each of the Significant Subsidiaries is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction in which the conduct of its business or its ownership or lease of property requires such qualification, other than jurisdictions in which the failure to so qualify, considering all such cases in the aggregate, would not have a material adverse effect on the Company.
(ii) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus under the caption "Capitalization." All of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable. All of the outstanding capital stock of the Bank is owned by the Company, and such capital stock is not subject to any security interest, other encumbrance or adverse claim.
(iii) All of the issued and outstanding shares of the Significant Subsidiaries have been duly and validly authorized and issued, are fully paid and nonassessable. All such shares of the Significant Subsidiaries other than the Bank are owned by the Bank free and clear of all perfected and, to the best of such counsel's knowledge, other liens, encumbrances, equities, claims, security interests, voting trusts or other defects of title whatsoever.
(iv) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding instrument of the Company, enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting the rights of creditors generally and by equitable principles. The Notes being delivered on the Closing Date have been duly and validly authorized, and when authenticated by the Trustee in accordance with the Indenture and delivered pursuant to the Agreement will be duly issued, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting the rights of creditors generally and by equitable principles, and except as to those provisions relating to waivers of stay or extension laws as to which such counsel expresses no opinion, and will be entitled to the benefits of the Indenture.
(v) The Agreement has been duly authorized, executed and delivered by the Company.
(vi) To the best of such counsel's knowledge, there are no legal or governmental actions, suits or proceedings pending or threatened against the Company or any of its subsidiaries which are required to be described in the Prospectus which are not described as required.
(vii) To the best of such counsel's knowledge, no holders of securities of the Company have rights which have not been waived to the registration of shares of common stock of the Company or other securities, because of the filing of the Registration Statement by the Company or the offering contemplated hereby.
(viii) To the best of such counsel's knowledge, neither the Company nor any of the Significant Subsidiaries is in violation of its articles of incorporation, charter or bylaws or in default under any material contract, license, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company or any such Significant Subsidiary is a party or by which it is bound, or to which any of the property or assets of the Company or any Significant Subsidiary is subject, which violation or default would have a material adverse effect on the Company.
(ix) The execution and delivery by the Company of, and performance by the Company of its agreements in, the Agreement, the SecuritiesIndenture and the consummation of the transactions contemplated thereby, including the issuance, sale and delivery of the Notes pursuant to the Agreement, will not result in any violation of the provisions of the articles of incorporation or bylaws of the Company (f) On the Closing Date, there shall have been furnished to the Underwriters, such opinion or opinions from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated such Closing Date and addressed to you, with respect to the incorporation of the Company, the validity of the Notes, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectusother related matters as you may reasonably request, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to such counsel for the Underwriters, and the Company and the Parent Guarantor 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.
(dg) Xxxxxx & Bird LLP shall have furnished to On the Representative its written opinion and its 10b-5 letterClosing Date the Underwriters, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx Deloitte & Xxxxxxxx Touche LLP, counsel for the Underwritersindependent certified public accountants, such opinion and 10b-5 letter, a letter dated the Delivery Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representativeyou, addressed to the Underwriters and dated the date hereof effect that (i) confirming that they are independent public accountants with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and are in compliance with the applicable requirements relating to the qualification qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three five days prior to the date of the bring-down KPMG such letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by its letter delivered to you concurrently with the initial KPMG execution of this Agreement, and the effect of the letter and (iii) confirming in all material respects to be so delivered on the Closing Date shall be to confirm the conclusions and findings set forth in the initial KPMG such prior letter.
(ih) Each of On the Company and the Parent Guarantor Closing Date there shall have been furnished to the Representative Underwriters, a certificate, dated the Delivery Date, of a director, in the case Closing Date and addressed to you and signed on behalf of the Company, and the Company by its President or its Chief Executive Officer and its Vice President, Secretary and Treasurer, to the Chief Financial Officer, in the case of the Parent Guarantor, stating effect that:
(i) The representations, representations and warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 this Agreement are true and correct on correct, as if made at and as of the Delivery Closing Date, and each of the Company and the Parent Guarantor, as applicable, has complied with all its the agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Delivery Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any amendment thereof or supplement thereto has been issued; , and no proceedings or examination proceeding for that purpose have has been instituted or, to the knowledge best of such personstheir knowledge, is threatened; and , by the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment theretostate regulatory body; and
(iii) They The signers of said certificate have carefully examined the Registration Statement, the Prospectus Statement and the Pricing Disclosure PackageProspectus, andand any amendments thereof or supplements thereto, in their opinion, and (A) (1) neither the Registration Statement, as of the Effective Date, (2) Statement nor the Prospectus, as of its date and on the Delivery Datenor any amendment thereof or supplement thereto, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain contains any untrue statement of a material fact and did not and do not omit or omits to state a any material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, effective date of the Registration Statement there has occurred no event has occurred that should have been required to be set forth in a supplement an amended or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that supplemented prospectus which has not been so set forth.
, (jC) The Underwriters shall have received an executed copy subsequent to the respective dates as of which information is given in the Paying Agency Agreement.
(k) Application shall have been made to list Registration Statement and the Notes on the NYSE for trading on such exchange andProspectus, in connection therewithand except as disclosed or incorporated by reference therein, neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiariessubsidiaries has incurred any material liability or obligation, including the Companydirect or contingent, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, entered into any loss or interference with its business from fire, explosion, flood or other calamitymaterial transaction, whether or not covered by insurancein the ordinary course of business, or from declared or paid any labor dispute dividend or court or governmental actionmade any distribution of any kind with respect to its capital stock, order or decree or (ii) since such date except regular quarterly cash dividends declared by the Board of Directors of the Company and paid by the Company in the ordinary course of business in accordance with the dividend policy established by the Board of Directors, and there shall has not have been any change in the capital stock of the Company (except for the issuance of shares upon exercise of outstanding stock options), or any material increase in the short-term debt or long-term debt (including capitalized lease obligations) of the Parent Guarantor or any of its subsidiaries, including the Company, or any changeissuance of options, warrants, convertible securities or other rights to purchase capital stock of the Company (except for securities granted pursuant to or shares of common stock issued pursuant to the employee benefit plans of, or as compensation to the directors of, the Company and the Bank), or any development involving a prospective change, material adverse change in or affecting the condition (financial or otherwise)) of the Company, results of operations, stockholders’ equity, properties, managementor in the financial results, business affairs or business prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a wholeand the Company has not sustained any material loss or damage to its property or material interference with its business, the effect of which, in whether or not any such case described in clause (i) or (ii), is, in the judgment of the Representativeforegoing is insured, so material and adverse (D) except as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated disclosed in the Prospectus.
(n) Since the date hereof, there shall is not have occurred pending or threatened or, to their knowledge, contemplated, any downgrading with respect to any debt securities of the Parent Guarantor action, suit, proceeding or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange investigation before or by any other regulatory body court or governmental authority having jurisdictionagency or body, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authoritiesany arbitrator, (iii) a member state the disposition of the European Union or the United States shall have become engaged which would be reasonably likely to result in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a any material adverse change in general economicthe condition (financial or otherwise) of the Company, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on in the financial markets in results, business affairs or business prospects of the European Union or United States Company.
(i) The Notes shall be such), as to make it, tendered for delivery in the judgment of the Representative, impracticable or inadvisable to proceed accordance with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and provisions of this Agreement.
(j) On the Closing Date, counsel for the Underwriters shall have been furnished with such documents and certificates as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Notes as herein contemplated and related proceedings, or in order to evidence the manner contemplated in accuracy of any of the Prospectusrepresentations or warranties, or the fulfillment of any of the conditions, herein contained. 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 reasonably satisfactory in form and substance reasonably satisfactory to you and counsel for the UnderwritersUnderwriters in all material respects. All statements contained in any certificate, letter or other document delivered pursuant hereto by or on behalf of the Company shall be deemed to constitute representations and warranties of the Company and not the person signing any such document. The Company will furnish you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request. The Underwriters may waive in writing the performance of any one or more of the conditions specified in this Section 5 or extend the time for their performance.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the Delivery Date, Date of the representations and warranties of the Company and the Parent Guarantor Selling Stockholders contained herein, to the performance by each of the Company and the Parent Guarantor Selling Stockholders of its their respective obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Prospectus containing the Rule 430B Information shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) Xxxxxx Akin, Gump, Strauss, Xxxxx & Bird LLP Xxxx, L.L.P. shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its their written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially in the forms form attached hereto as Exhibit A-4.A.
(e) Xxxxxxx Xxxxxxxx shall have furnished to the Underwriters his written opinion, as General Counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Underwriters, substantially in the form attached hereto as Exhibit B.
(f) The Representative respective counsel for each of the Selling Stockholders shall have furnished to the Underwriters their written opinions, as counsel to each of the Selling Stockholders for whom they are acting as counsel, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Underwriters, substantially in the form attached hereto as Exhibit C, Exhibit D or Exhibit E as applicable.
(g) The Underwriters shall have received from Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Underwriters may reasonably require, and the Company and the Parent Guarantor Selling Stockholders shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gh) At the time of execution of this Agreement, the Representative Underwriters shall have received from KPMG Deloitte & Touche LLP a letterletters with respect to the Company and NCM LLC, in form and substance satisfactory to the RepresentativeUnderwriters, addressed to the Underwriters and dated the date hereof (iA) confirming that they are it is an independent public accountants accountant within the meaning of the Securities Act and are 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 are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (iiB) 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 regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hi) With respect to the letter letters of KPMG Deloitte & Touche LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Underwriters concurrently with the execution of this Agreement (the “initial KPMG letterletters”), the Parent Guarantor Company shall have furnished to the Representative a letter Underwriters letters (the “bring-down KPMG letterletters”) of such accountantsaccountant, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are the accountant is an independent public accountants accountant within the meaning of the Securities Act and are 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 are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter letters (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letterletters), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the its initial KPMG letter letters and (iii) confirming in all material respects the conclusions and findings set forth in the its initial KPMG letterletters.
(ij) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Underwriters a certificate, dated on the Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, representations and warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, Date and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, misleading and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(jk) The Underwriters Each Selling Stockholder shall have received an executed copy furnished to the Underwriters on the Delivery Date a certificate, dated the Delivery Date, signed by, or on behalf of, the Selling Stockholder stating that the representations and warranties of the Paying Agency Agreement.
(k) Application shall have been made to list Selling Stockholder contained herein are true and correct on and as of the Notes Delivery Date and that the Selling Stockholder has complied with all its agreements contained herein and has satisfied all the conditions on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused its part to be prepared and submitted performed or satisfied hereunder at or prior to the NYSE a listing application with respect to the NotesDelivery Date.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
Except as described in the Pricing Disclosure Package, (mi) Neither neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, Pricing Disclosure Package 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 decree, or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), stockholders’ equity, results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeUnderwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(om) Subsequent to the execution and delivery of this AgreementAgreement (i) no downgrading shall have occurred in the rating accorded the Company’s or any of its subsidiaries’ 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, with possible negative implications, its rating of any of the Company’s or any of its subsidiaries’ debt securities.
(n) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilitieshostilities (for the avoidance of doubt, excluding the current hostilities in Iraq and Afghanistan), there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeUnderwriters, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(o) The New York Stock Exchange shall have approved the Stock for listing.
(p) The Lock-Up Agreements among Xxxxxx Xxxxxxx, on behalf of the Underwriters, and the officers, directors and stockholders of the Company set forth in Schedule 4 hereto shall be in full force and effect on the Delivery Date.
(q) At the Delivery Date, the consolidated financial statements (including the related notes and supporting schedules) included in each of the Pricing Disclosure Package and the Prospectus shall present fairly in all material respects the financial position and the results of operations of NCM LLC, at the dates and for the periods indicated, and shall have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods involved. 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. The Underwriters may in their sole discretion waive compliance with any conditions to the obligations of the Underwriters hereunder.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 . The Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified . If the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of any objection to the use of the form of the Registration Statementthis Agreement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Dxxxx Xxxx & Xxxxxxxx Wxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Lxxxxx & Bird Wxxxxxx LLP shall have furnished to the Representative its written opinion and its 10b-5 negative assurance letter, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, .
(e) Cxxxxx LLP shall have furnished to the Representative his its written opinion, at as patent counsel to the request of the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Dxxxx Xxxx & Xxxxxxxx Wxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG BDO USA, LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG BDO USA, LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the The Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial OfficerOfficer as to such matters as the Representative may reasonably request, in the case of the Parent Guarantorincluding, stating thatwithout limitation, a statement:
(i) The That the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No That 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 personsofficers, threatened; and the Commission has shall not have notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and;
(iii) They That they have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth; and
(iv) To the effect of Section 7(j) (provided that no representation with respect to the judgment of the Representative need be made).
(j) The Underwriters shall have received an executed copy of Except as described in the Paying Agency Agreement.
most recent Preliminary Prospectus, (ki) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its 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 decree, or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ok) Subsequent to the execution and delivery of this Agreement, 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 NYSE Commission under Section 6 of the Exchange Act (including the New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market or in the over-the-counter marketThe NASDAQ Capital Market), or (B) trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such)) or any other calamity or crisis either within or outside the United States, as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(l) The Nasdaq Capital Market shall have approved the Stock for listing, subject only to official notice of issuance.
(m) The Lock-Up Agreements between the Representative and the officers, directors and stockholders of the Company set forth on Schedule II, delivered to the Representative on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(n) On or prior to each Delivery Date, the Company shall have furnished to the Underwriters 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 (BioXcel Therapeutics, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Xxxxxx Parties contained herein, to the performance by each the Xxxxxx Companies of the Company and the Parent Guarantor of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Xxxxxx Parties shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to any of the Company Xxxxxx Parties on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for to the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary (in the case of the Prospectus or the Pricing Disclosure Package, in the light of the circumstances under which such statements were made) to make the statements therein not misleading.
(c) All corporate corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesUnits, the Operative Agreements, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP Xxxxxx L.L.P. shall have furnished to the Representative its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorPartnership, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3B-1.
(e) Xxxxxx Xxxxx & Xxxxxxxxx X.X. Xxxxxxx, P.C. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the CompanyPartnership, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms form attached hereto as Exhibit A-4B-2.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor Xxxxxx Parties shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG Xxxxx Xxxxxxxx LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG Xxxxx Xxxxxxxx LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Xxxxxx Parties shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor The Xxxxxx Parties shall have furnished to the Representative a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case Officer of the Parent GuarantorGeneral Partner, stating that:
(i) The the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, Xxxxxx Parties in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has Xxxxxx Parties have complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied by the Xxxxxx Parties hereunder at or prior to the such Delivery Date;
(ii) No 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 personstheir knowledge, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They they have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, and (A) nothing has come to their attention that would lead them to believe that (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain contained or contains any untrue statement of a material fact and did not and do not omit or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.;
(j) The Underwriters shall have received an executed copy Except as described in the most recent Preliminary Prospectus, (i) none of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, Xxxxxx Entities shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock capitalization or increase in the long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, Xxxxxx Entities or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including Xxxxxx Parties taken as a whole or the Company, Xxxxxx MLP Parties taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ok) Subsequent to the execution and delivery of this Agreement, Agreement there shall not have occurred any of the following: (i) trading in (A) securities generally on the NYSE NASDAQ Global Market LLC, the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in (B) any securities of the Company Partnership or the Parent Guarantor MLP on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(l) The NASDAQ Global Market LLC shall have approved the Units for quotation subject to official notice of issuance.
(m) The Lock-Up Agreements between the Representative and each of the parties listed on Schedule II hereto and, in the case of each participant in the Directed Unit Program, the lock-up agreement contained in the Directed Unit Program materials and delivered to the Representative on or before the date of this Agreement, shall be in full force and effect on such Delivery Date. 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 Underwriters hereunder are subject to the accuracy, when made and on the Delivery date of the Prospectus and on the Closing Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to ) and Section 5(a)(i5(a)(iv) hereof) required by Rule 433 ; the Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 or pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or any document incorporated by reference therein or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration StatementStatement or any post-effective amendment thereto.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Closing Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the reasonable opinion of Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Indenture, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Xxxxxxxx & Bird Xxxxxxxx LLP shall have furnished to the Representative Underwriters its written opinion and its 10b-5 separate negative assurance letter, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and delivered and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially in addressing the forms matters set forth on Exhibit A attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxxhereto.
(e) Xxxxxx X. Xxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor/Corporate Secretary, shall have furnished to the Representative Underwriters his written opinion, at the request of the Company and the Parent Guarantor, opinion addressed to the Underwriters and delivered and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially in addressing the form matters set forth on Exhibit B attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4hereto.
(f) The Representative Representatives shall have received from Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG PricewaterhouseCoopers LLP, BDO USA, LLP a letterand Deloitte & Touche LLP separate letters, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and the Company and dated the date hereof (i) confirming that they are independent registered 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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter letters of KPMG PricewaterhouseCoopers LLP, BDO USA, LLP and Deloitte & Touche LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letterletters”), the Parent Guarantor PricewaterhouseCoopers LLP, BDO USA, LLP and Deloitte & Touche LLP shall each have furnished to the Representative Representatives a letter (the each, a “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and the Company and dated the Delivery Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, Commission; (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three two days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letter; (iii) covering financial information in the Prospectus; and (iiiiv) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each The Company shall have furnished to the Representatives a certificate, dated the Closing Date, of any vice-president of the Company and the Parent Guarantor shall have furnished principal financial officer, vice president/treasurer or principal accounting officer of the Company satisfactory to the Representative a certificate, dated Representatives to the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating effect that:
(i) The representations, representations and warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct with the same force and effect as though expressly made on and as of the Delivery Closing Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose or pursuant to Section 8A under the Securities Act have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the each Effective Date, (2) the Prospectus, as of its date and on as of the Delivery Closing Date, or and (3) the Pricing Disclosure Package, as of the Applicable TimeTime and as of the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of Except as described in the Paying Agency Agreement.
Pricing Disclosure Package and the Prospectus, (ki) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date respective dates as of the latest audited financial statements included or incorporated by reference which information is given in the most recent Preliminary ProspectusPricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock stock; or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects properties of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the reasonable judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery sale of the Securities being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the ProspectusPricing Disclosure Package, the Prospectus or this Agreement.
(nk) Since Subsequent to the date hereofexecution and delivery of this Agreement, there shall not have occurred any downgrading with respect to any debt securities (i) no downgrade in the rating of the Parent Guarantor Company or its financial strength or the rating of any of its subsidiaries, including the Company, ’s securities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act (the “Rating Agencies”) shall have occurred or any public announcement be pending and (ii) no Rating Agency shall have publicly announced that any such organization it has under surveillance or review review, with possible negative implications, its rating of the Company or the Company’s financial strength or its rating of any debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)the Company’s securities.
(ol) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the NYSE New York Stock Exchange or in the over-the-counter marketNASDAQ National Market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state authorities; or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or States, there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) States, there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery sale of the Securities being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the ProspectusPricing Disclosure Package, the Prospectus or this Agreement.
(m) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
(n) At the time of execution of this Agreement and on the Closing Date, the Representatives shall have received a certificate of the Chief Financial Officer of the Company, dated as of such date, in a form reasonable satisfactory to the Representatives.
(o) On or prior to the Closing Date, the Company shall have furnished to the Representatives such further certificates and documents as the 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 Underwriters Underwriter hereunder are shall be subject to the accuracy, when made in all material respects at and on (except as otherwise stated herein) as of the Delivery Datedate hereof and at and as of the Closing Dates (except that representations and warranties qualified by materiality shall be true and correct in all respects), of the representations and warranties of made herein by the Company and the Parent Guarantor contained hereinSelling Stockholders, and to compliance in all respects at and as of the performance Closing Dates by each of the Company and the Parent Guarantor of its obligations hereunderSelling Stockholders with their covenants and agreements herein contained, and to each of the following additional terms and conditions:
(a) : The Prospectus Registration Statement, if not heretofore effective, shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, become effective and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued and no proceeding or examination proceedings for such that purpose shall have been initiated or, to the knowledge of the Company or the Underwriter, shall be threatened by the Commission; , and any request for additional information on the part of the Commission for inclusion of additional information (to be included in the Registration Statement or the Prospectus or otherwise otherwise) shall have been complied with; and the Commission shall not have notified the Company of any objection with to the use reasonable satisfaction of the form Underwriter. Any filings of the Registration Statement.
(bProspectus, or any supplement thereto, required pursuant to Rule 424(b) No Underwriter or Rule 434 of the Rules and Regulations, shall have discovered been made in the manner and disclosed to within the Company on or prior to time period required by Rule 424(b) and Rule 434 of the Delivery Date that Rules and Regulations, as the case may be. Neither the Registration Statement, Statement nor the Prospectus or the Pricing Disclosure PackageProspectus, or any amendment or supplement thereto, contains shall contain an untrue statement of a fact which, which in the reasonable opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for to the Underwriters, Underwriter is material or omits to state a fact which, which in the reasonable opinion of such counselthe Underwriter is material, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to . At the authorization, form and validity time of execution of this Agreement, the SecuritiesUnderwriter shall have received from Xxxxxx Xxxxxxxx LLP, independent certified public accountants, a letter, dated the date hereof, in form and substance satisfactory to the Underwriter. The Underwriter shall have received from Xxxxxx Xxxxxxxx LLP, independent certified public accountants, a letter, dated the Closing Dates, to the effect that such accountants reaffirm, as of the Closing Dates, and as though made on the Closing Dates, the statements made in the letter furnished by such accountants pursuant to paragraph (c) of this Section 8. The Underwriter shall have received from Xxxxxx Xxxxx & Bockius LLP, counsel for the Company, an opinion, dated the Closing Dates, to the effect set forth in Exhibit I hereto. The Underwriter shall have received from Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP, counsel for the Underwriter, their opinion or opinions dated the Closing Dates with respect to the incorporation of the Company, the validity of the Stock, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all such other legal related matters relating to this Agreement and the transactions contemplated hereby shall be as Underwriter may reasonably satisfactory in all material respects to counsel for the Underwritersrequest, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor Selling Stockholders shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative . The Underwriter shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery DateClosing Dates, of a director, in the case Company signed on its behalf by the president and the chief financial officer of the Company, and Company in which such officers shall state to the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating effect that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; , and, to the knowledge of the signers, no proceedings or examination for that purpose have been instituted or, to or are pending or contemplated under the knowledge Securities Act;
(ii) As of the date of such personscertificate, threatened; and the Commission has not notified the Company or the Parent GuarantorProspectuses, as applicableamended or supplemented through such date, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did does not and do not contain include any untrue statement of a material fact and did not and do not or omit to state a any material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statementtherein, in the light of the circumstances under which they were made) , not misleading;
(iii) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, and (B) since the Effective Date, no event has occurred that should have been except as set forth or contemplated in a supplement or amendment to the Registration StatementProspectus, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiariessubsidiaries has incurred any material liabilities or obligations, including the Company, shall have sustained, since the date of the latest audited financial statements included direct or incorporated by reference contingent not in the most recent Preliminary Prospectusordinary course of business, nor entered into any loss or interference with its material transactions not in the ordinary course of business from fire, explosion, flood or other calamity, whether or and there has not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any material adverse change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsproperties, stockholders’ equity, propertiesbusiness affairs, management, business prospects or prospects results of operations of the Parent Guarantor Company and its subsidiaries, including the Company, taken subsidiaries considered as a whole, the effect of which, in or any such case described in clause (i) or (ii), is, change in the judgment capital stock (other than pursuant to the exercise of the Representative, so material and adverse as to make it impracticable outstanding stock options or inadvisable to proceed with the public offering warrants or the delivery conversion of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62preferred stock) of the Exchange Act or any public announcement that any such organization has under surveillance or review Company and its rating of any debt securities (other than an announcement with positive implications of subsidiaries which is material to the Company and its subsidiaries considered as a possible upgrading, and no implication of a possible downgrading of such rating).whole;
(oiv) Subsequent to the execution The representations and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the NYSE or in the over-the-counter market, or trading in any securities warranties of the Company in this Agreement are true and correct in all material respects (except that representations and warranties qualified by materiality shall be true and correct in all respects) at and as of the Closing Dates, and the Company has complied in all material respects with all the agreements and performed or satisfied all the Parent Guarantor conditions on any exchange its part to be performed or in satisfied at or prior to the over-the-counter market, Closing Dates. The Underwriter shall have been suspended received a certificate or materially limited or certificates, dated the settlement First Closing Date, of each Selling Stockholder to the effect that as of the First Closing Date such Selling Stockholder's representations and warranties in this Agreement are true and correct in all material respects as if made on and as of such trading generally Closing Date (except that representations and warranties qualified by materiality shall be true and correct in all respects), and that he has performed in all material respects all his obligations and satisfied all the conditions on such Selling Stockholder's part to be performed or satisfied at or prior to such Closing Date. Each officer, director and employee of the Company has furnished to you, on or prior to the date of this agreement, a letter or letters (the "Lock-up Letters") in substantially the form attached as Exhibit B hereto. The Nasdaq National Market shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by approved the CommissionStock for inclusion, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state subject only to official notice of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectusissuance. All 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 hereunder only if they are satisfactory in form and substance to the Underwriter in his reasonable judgment. The Company will furnish to the Underwriter conformed copies of such opinions, certificates, letters and other documents as the Underwriter shall reasonably satisfactory request. If any of the conditions hereinabove provided for in this Section shall not have been satisfied when and as required by this Agreement unless such failure to counsel for satisfy results from any default or omission on the Underwriterspart of the Underwriter, this Agreement may be terminated by the Underwriter by notifying the Company of such termination in writing or by telegram at or prior to the First Closing Date, but the Underwriter shall be entitled to waive any of such conditions.
Appears in 1 contract
Samples: Underwriting Agreement (Cdnow Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor K-Sea Parties contained herein, to the performance by each the K-Sea Parties of the Company and the Parent Guarantor of its their obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Partnership shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company Partnership on or prior to the such Delivery Date that the Registration 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or in the documents incorporated by reference therein or is necessary to make the statements therein not misleading.
(c) All corporate corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesUnits, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor K-Sea 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) Xxxxxx & Bird LLP Xxxxx Xxxxx L.L.P. shall have furnished to the Representative its Underwriter their written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorK-Sea Parties, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in to the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, effect set forth on Exhibit B hereto.
(e) Holland & Knight LLP shall have furnished to the Representative his Underwriters their written opinion, at as special maritime counsel to the request of the Company and the Parent GuarantorK-Sea Parties, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as effect set forth on Exhibit A-4C hereto.
(f) The Representative Underwriters shall have received from Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor K-Sea Parties shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Underwriters shall have received from KPMG PricewaterhouseCoopers LLP a letterletter or letters, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered public accountants accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in or incorporated by reference into 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter or letters of KPMG PricewaterhouseCoopers LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Underwriters concurrently with the execution of this Agreement (the “initial KPMG letterletters”), the Parent Guarantor Partnership shall have furnished to the Representative Underwriter a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters Underwriter and dated the such Delivery Date (i) confirming that they are an independent registered public accountants accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letterletters.
(i) Each K-Sea General Partner, on behalf of the Company itself and the Parent Guarantor its direct and indirect subsidiaries, shall have furnished to the Representative Underwriter a certificate, dated the such Delivery Date, of a director, in the case its Chairman of the CompanyBoard, its President or a Vice President and the Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, K-Sea Parties in Section 1 are true and correct on and as of the such Delivery Date, and each of ; the Company and the Parent Guarantor, as applicable, has K-Sea Parties have complied with all its their agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, Package and, in their opinion, opinion (A) (1) the Registration Statement, as of the Effective DateTime, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, including the documents incorporated therein by reference, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except and, in the case of the Registration StatementProspectus and the Pricing Disclosure Package, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Datedate of the most recent financial statements included or incorporated by reference into the Prospectus, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that Prospectus, or in an Incorporated Document, which has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since Since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, Pricing Disclosure Package (A) no K-Sea Party shall 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 decree, otherwise than as set forth or contemplated in the Pricing Disclosure Package and (iiB) since such date there shall not have been any change in the capital stock capitalization or long-term debt of any of the Parent Guarantor K-Sea Parties or any of its subsidiaries, including the Company, their subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (general affairs, management, financial or otherwise), results of operationsposition, stockholders’ equity, properties, management, business equity or prospects partners’ equity or results of operations of the Parent Guarantor and its subsidiariesK-Sea Parties, including other than as set forth or contemplated in the Company, taken as a wholeProspectus, the effect of which, in any such case described in clause (iA) or (iiB), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the ProspectusPricing Disclosure Package.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ok) 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 NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, market shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Partnership on any exchange or in the over-the-counter market shall have been suspended or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (iii) a banking moratorium shall have been declared by federal Federal or New York state or European Union authorities, (iiiiv) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (ivv) there shall have occurred such a material adverse change in general economic, political or financial conditionsconditions (or the effect of international conditions on the financial markets in the United States shall be such), 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 European Union or United States shall be such)hereof, as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus. .
(l) The New York Stock Exchange shall have approved the Units for listing, subject only to official notice of issuance.
(m) The Lock-Up Agreements between Xxxxx Fargo Securities, LLC and the executive officers and directors of K-Sea General Partner and EW Transportation , delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(n) 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 (K-Sea Transportation Partners Lp)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of contained herein given by the Company Company, Evercore LP and the Parent Guarantor contained hereinSelling Stockholders, to the performance by each of the Company and the Parent Guarantor Selling Stockholders of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection with or otherwise resolved to the use of the form of the Registration StatementRepresentatives’ reasonable satisfaction.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxx & Xxxxxxxx and Xxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesPowers of Attorney, the Stock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) Xxxxxx Xxxxxxx Xxxxxxx & Bird LLP Xxxxxxxx LLP, as counsel to the Company, shall have furnished to the Representative Representatives its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, letter addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, Date substantially in the forms attached hereto as Exhibits A-1 B-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3B-2.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4[Reserved].
(f) [Reserved].
(g) The Representative Representatives shall have received from Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxx & Xxxxxxxx and Xxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gh) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG Deloitte & Touche LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the 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.
(i) With respect to the letter of Deloitte & Touche LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “initial D&T letter”), the Company shall have furnished to the Representatives a letter (the “bring-down D&T letter”) of such accountants, addressed to the Underwriters and dated such Delivery Date (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 Prospectus, as of a date not more than three days prior to the date of the bring-down D&T letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial D&T letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial D&T letter.
(j) At the time of execution of this Agreement, the Representatives shall have received from PricewaterhouseCoopers, S.C. a letter, in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hk) With respect to the letter of KPMG LLP PricewaterhouseCoopers, S.C. referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG PwC letter”), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “bring-down KPMG PwC letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG PwC letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG PwC letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG PwC letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG PwC letter.
(l) At the time of execution of this Agreement, the Representatives shall have received from Xxxxxxx Xxxxxxxxx a letter, in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (i) Each 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, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(m) With respect to the letter of Xxxxxxx Xxxxxxxxx referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “initial Xxxxxxx Xxxxxxxxx letter”), the Company and the Parent Guarantor shall have furnished to the Representative Representatives a letter (the “bring-down Xxxxxxx Xxxxxxxxx letter”) of such accountants, addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down Xxxxxxx Xxxxxxxxx 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 Xxxxxxx Xxxxxxxxx letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial Xxxxxxx Xxxxxxxxx letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial Xxxxxxx Xxxxxxxxx letter.
(n) The Company shall have furnished to the Representatives a certificate, dated the such Delivery Date, of a director, in the case one of the Company, and the its Co-Chief Executive Officer Officers and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration StatementStatement did not, as of the Effective Date, (2) the ProspectusProspectus did not, as of its date and on the applicable Delivery Date, 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, did not and do not contain any untrue statement of a material fact and did not and do not or omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration StatementProspectus and the Pricing Disclosure Package, in the light of the circumstances under which they were made) not misleading, misleading and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth;
(o) Each Selling Stockholder (or one or more attorneys-in-fact on behalf of such Selling Stockholders) shall have furnished to the Representatives on such Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, such Selling Stockholder (or the Custodian or one or more attorneys-in-fact) stating that the representations, warranties and agreements of such Selling Stockholder contained herein are true and correct on and as of such Delivery Date and that such 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.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(mi) Neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, other than as set forth or contemplated in the most recent Preliminary Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(oq) 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 NYSE or in the over-the-counter market, New York Stock Exchange or trading in any securities of the Company or the Parent Guarantor 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 or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(r) The New York Stock Exchange shall have approved the Stock for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(s) The Lock-Up Agreements between the Representatives and the officers, directors and stockholders of the Company set forth on Schedule 2, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date. 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 Underwriters hereunder are subject to the accuracy, when as of the date hereof and the Closing Date (as if made and on at the Delivery Closing Date), of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i4(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereofFinal Term Sheet) required by Rule 424(b) or Rule 433 of the Rules and Regulations shall have been mademade within the time periods prescribed by such Rules and Regulations, and no such filings shall will have been made without the consent of the RepresentativeRepresentatives; no stop order suspending the effectiveness of the Registration Statement or any amendment or supplement thereto, preventing or suspending the use of the Prospectus or any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification of the Notes for offering or sale in any jurisdiction or any part thereof shall have been issued and issued; no proceeding or examination for such that purpose shall have been initiated or threatened by the Commission; no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto shall have been received by the Company; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been disclosed to the Representatives and complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesNotes, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(dc) Xxxxxx Xxxxxx, Xxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letterBockius LLP, as U.S. counsel to the Company and shall have furnished to the Parent Guarantor, Representatives its written opinion addressed to the Underwriters and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially to the effect set forth in the forms form attached hereto as Exhibits A-1 and A-2. R. Xxxxx XxxxxxExhibit A.
(d) Xxxxxxx Xxxx & Xxxxxxx, Vice President—Business Strategy and General Counsel of as special Bermuda counsel to the Parent GuarantorCompany, shall have furnished to the Representative his Representatives their written opinion, at the request of the Company and the Parent Guarantor, opinion addressed to the Underwriters and dated the Delivery such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially to the effect set forth in the form attached hereto as Exhibit A-3.B.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLPXxxxxxxx, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Closing Date, with respect to the issuance and sale of the SecuritiesNotes, the Indenture, the Registration Statement, the Prospectus Statement and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, in form and substance set forth in Exhibit C hereto, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gf) At On the time of execution of this Agreementdate hereof and the Closing Date, the Representative Representatives shall have received from KPMG Ernst & Young LLP a letterletters (the "COMFORT LETTERS"), dated the date hereof and the Closing Date, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Representatives on behalf of the Underwriters and dated the date hereof (i) confirming that they are independent registered 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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the Closing Date and not earlier than the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “' "comfort letters” " to Underwriters underwriters in connection with registered public offerings.
(hg) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor The Company shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the Delivery Closing Date, of a director, in the case of the Company, and the its Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on as if made at and as of the Delivery Closing Date, and each of ; the Company and the Parent Guarantor, as applicable, has complied with all its agreements contained herein herein; and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Delivery Dateset forth in Sections 7(a), 7(h) and 7(k) have been fulfilled;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the most recent Preliminary Prospectus, the Disclosure Package and the Prospectus and any amendments or supplements thereto (including any documents incorporated or deemed to be incorporated by reference into the most recent Preliminary Prospectus and the Pricing Disclosure Package, Prospectus) and, in their opinion, opinion (A) (1) the Registration Statement, Statement as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, and the Prospectus, as of its date, including in each case any document incorporated or deemed incorporated by reference therein, did not and and, on the Closing Date, do not contain include any untrue statement of a material fact and did not and do not or omit to state a any material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, misleading and (B) since the initial Effective DateDate of the Registration Statement, there has occurred no event has occurred that should have been required to be set forth in a an amendment or supplement or amendment to the Registration Statement, the most recent Preliminary Prospectus or any Issuer Free Writing the Prospectus which has not been so set forth and there has been no document required to be filed under the Securities Act and the Rules and Regulations or the Exchange Act and the rules and regulations thereunder that upon such filing would be deemed to be incorporated by reference into the Registration Statement, the most recent Preliminary Prospectus or the Prospectus that has not been so filed;
(iii) There has been never been any credit event on any credit default swap sold by the Company or any of its subsidiaries; and
(iv) Except as set forthforth in the most recent Preliminary Prospectus, none of the counterparties of the Company or any of its subsidiaries has ever required the Company or any of its subsidiaries to post any collateral. The officers signing and delivering such certificate may rely upon the best of their knowledge as to proceedings threatened.
(jh) The Underwriters shall have received an executed copy of Except as described in the Paying Agency Agreement.
(k) Application shall have been made to list most recent Preliminary Prospectus and the Notes on the NYSE for trading on such exchange andProspectus, in connection therewith, neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, Prospectus (A) any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (iiB) since such date date, there shall not have been any change in the share capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, propertiesgeneral affairs, management, business financial position, shareholders' equity or prospects results of operations of the Parent Guarantor Company and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (iA) or (iiB), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date Notes on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(oi) 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 on, or by, as the NYSE case may be, any of the New York Stock Exchange, the American Stock Exchange, the Nasdaq National Market or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal Federal or New York any state or European Union authoritiesauthority, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or there shall have occurred any other calamity or crisis or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), ) as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date Notes on the terms and in the manner contemplated in the Prospectus.
(j) The New York Stock Exchange, Inc. shall have approved the Notes for listing, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company's corporate credit rating and the rating of the Notes, Primus Financial's counterparty credit rating or the rating accorded to the debt securities of Primus Financial by any "NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION"(as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, the Company's corporate credit rating and the rating of the Notes, Primus Financial's counterparty credit rating or the rating accorded to the debt securities of Primus Financial.
(l) No Underwriter shall have been advised by the Company, or shall have discovered and disclosed to the Company, that the Registration Statement, the most recent Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement thereto contains an untrue statement of a fact which, in the reasonable opinion of the counsel for the Underwriters, is material or omits to state a fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading and has not been cured by any amendment or supplement thereto filed on or prior to the date hereof.
(m) 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. 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 Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Selling Stockholders contained herein, to the performance by each of the Company and the Parent Guarantor Selling Stockholders of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 threatened, or to the knowledge of the any Selling Stockholder, the Company or the Representatives contemplated by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the reasonable opinion of Xxxxx Xxxx & Xxxxxxxx Proskauer Rose LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesCustody Agreement, the Powers of Attorney, the Shares, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) Xxxxxx & Bird LLP shall have furnished to the Representative Representatives its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorSelling Stockholders, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3Representatives.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Proskauer Rose LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gf) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG LLP Deloitte a letter, in form and substance satisfactory to the Representative, Representatives addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hg) With respect to the letter of KPMG LLP Deloitte referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ih) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case of the Company, its principal executive officer and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, its principal financial officer stating that:
(i) The the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No 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 threatened or, to the knowledge of such personsofficers, threatened; and contemplated;
(iii) subsequent to the Commission date of the most recent financial statements in the Pricing Disclosure Package, there has not notified been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole except as set forth in the Pricing Disclosure Package or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment theretodescribed in such certificate; and
(iiiiv) They they have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration StatementStatement and the Prospectus, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(ji) The Underwriters Each Selling Stockholder (or one or more attorneys-in-fact on behalf of the Selling Stockholders) shall have received an executed copy furnished to the Representatives on such Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, the Selling Stockholder (or one or more attorneys-in-fact) stating that:
(i) the representations, warranties and agreements of the Paying Agency AgreementSelling Stockholder contained herein are true and correct on and as of such Delivery Date and that the Selling Stockholder have 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; and
(ii) such Selling Stockholders have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, to their knowledge, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement and the Prospectus, in the light of the circumstances under which they were made) not misleading and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(kj) Application shall have been made to list Except as described in the Notes on the NYSE for trading on such exchange andmost recent Preliminary Prospectus, in connection therewith, (i) neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, Significant Subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or court from any court, regulatory authority or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, Significant Subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Shares being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(nk) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)[Reserved.]
(ol) 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 NYSE New York Stock Exchange, the American Stock Exchange, Nasdaq Stock Market or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of any attack on, or outbreak involving the European Union or United States, the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Shares being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(m) The Nasdaq Stock Market shall have approved the Shares for listing, subject only to official notice of issuance.
(n) The Lock-Up Agreements between the Representatives and the officers, directors, Selling Stockholders and other stockholders of the Company set forth on Schedule III, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(o) The Company and the Selling Stockholders shall have furnished such other opinions, certificates, letters and documents as the Representatives 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 (Biote Corp.)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Selling Stockholders contained herein, to the performance by each of the Company and the Parent Guarantor Selling Stockholders of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Dxxxx Xxxx & Xxxxxxxx LLPWxxxxxxx, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesCustody Agreements, the Powers of Attorney, the Stock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) Dxxxx Xxxxxx & Bird LLP shall have furnished to the Representative Representatives its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel Exhibit B-1.
(e) The general counsel of the Parent Guarantor, Company shall have furnished to the Representative his Representatives its written opinion, at as counsel to the request of the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the form attached hereto as Exhibit A-3B-2.
(ef) Xxxxxx & Xxxxxxxxx X.X. The respective counsel for each of the Selling Stockholders shall have furnished to the Representative its Representatives their written opinion, as Luxembourg counsel to each of the CompanySelling Stockholders for whom they are acting as counsel, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibit A-4B-3.
(fg) The Representative Representatives shall have received from Xxxxx Dxxxx Xxxx & Xxxxxxxx LLPWxxxxxxx, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gh) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG LLP PricewaterhouseCoopers a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary ProspectusPricing Disclosure Package, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hi) With respect to the letter of KPMG LLP PricewaterhouseCoopers referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(j) At the time of execution of this Agreement, the Representatives shall have received from Ernst & Young LLP a letter, in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (i) Each 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, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(k) With respect to the letter of Ernst & Young LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “initial letter”), the Company and the Parent Guarantor shall have furnished to the Representative Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(l) The Company shall have furnished to the Representatives a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, representations and warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in to their opinionknowledge after due inquiry, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.;
(m) Each Selling Stockholder (or the Custodian or one or more attorneys-in-fact on behalf of the Selling Stockholders) 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 (or the Custodian or one or more attorneys-in-fact) stating that the representations and warranties of the Selling Stockholder contained herein are true and correct on and as of such Delivery Date and that the 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.
(n) Each Selling Stockholder (or the Custodian or one or more attorneys-in-fact on behalf of such Selling Stockholder) shall have furnished to the Representatives on such Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, such Selling Stockholder (or the Custodian or one or more attorneys-in-fact) stating that such Selling Stockholder has carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, to its knowledge, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(i) Neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary ProspectusPricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise)condition, results of operations, stockholders’ equity, properties, management, business or business prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(op) 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 NYSE New York Stock Exchange or in the over-the-counter marketNasdaq Stock Market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state authorities or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or States, there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(q) The New York Stock Exchange shall have approved the Stock for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(r) The Lock-Up Agreements between the Representatives and the officers, directors, Selling Stockholders and stockholders of the Company set forth on Schedule 3, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date. 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 Underwriters hereunder are subject to the accuracy, when as of the date hereof and the Closing Date (as if made and on at the Delivery Closing Date), of the representations and warranties of the Company and the Parent Guarantor Issuer contained herein, to the performance by each of the Company and the Parent Guarantor Issuer of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in a timely fashion in accordance with Section 5(a)(i); 4(a) hereof, the Registration Statement and all post-effective amendments to the Registration Statement shall have become effective, all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 424 and Rule 430A of the Rules and Regulations shall have been made, and no such filings shall have been made without the consent of the RepresentativeUnderwriters; no stop order suspending the effectiveness of the Registration Statement or preventing any amendment or supplement thereto or suspending the use qualification of the Prospectus Notes for offering or sale in any Issuer Free Writing Prospectus jurisdiction shall have been issued and issued; no proceeding or examination proceedings for the issuance of any such purpose order shall have been initiated or threatened by the Commissionthreatened; and any request of the Commission for inclusion of additional information (to be included in the Registration Statement or the Prospectus or otherwise otherwise) shall have been disclosed to you and complied with; and the Commission shall not have notified the Company of any objection with to the use of the form of the Registration Statementyour satisfaction.
(b) No Underwriter shall have been advised by the Issuer or shall have discovered and disclosed to the Company on or prior to the Delivery Date Issuer that the Registration Statement, Statement or the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact whichwhich in your opinion, or in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwritersyour counsel, is material material, or omits to state a fact which, in your opinion, or in the opinion of such your counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate partnership proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, Agreement and the Registration Statement, the Prospectus Statement and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor Issuer shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP Xxxxxxx shall have furnished to the Representative Underwriters, its written opinion (based on the assumptions and its 10b-5 lettersubject to the exclusions contained therein), as U.S. counsel to the Company and the Parent GuarantorIssuer, addressed to the Underwriters and dated the Delivery Closing Date, in form and substance reasonably satisfactory substantially as to the Representativematters set forth in Exhibit A hereto.
(e) Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, LLP shall have furnished to the Representative his Underwriters, its written opinionopinion (based on the assumptions and subject to the exclusions contained therein), at as special Maryland counsel to the request of the Company and the Parent GuarantorIssuer, addressed to the Underwriters and dated the Delivery Closing Date, in form and substance reasonably satisfactory substantially as to the Representative, substantially matters set forth in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4B hereto.
(f) The Representative Underwriters shall have received from Xxxxx Xxxx & Xxxxxxxx LLPXxxxxxx L.L.P., counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Closing Date, with respect to the issuance and sale of the SecuritiesNotes, the Registration Statement, the Statement and Prospectus and the Pricing Disclosure Package and other related matters as the Representative Underwriters may reasonably require, and the Company and the Parent Guarantor Issuer shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Underwriters shall have received from KPMG Ernst & Young LLP a letter, in form and substance satisfactory to the RepresentativeUnderwriters, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent public accountants within the meaning under Rule 101 of the Securities Act American Institute of Certified Public Accountants' Code of Professional Conduct 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 its interpretations and are an independent registered public accounting firm with the Public Company Accounting Oversight Boardrulings thereunder, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Registration Statement and Prospectus, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor (including pro forma financial information) and other matters ordinarily covered by accountants’ “' "comfort letters” " to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG Ernst & Young LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Underwriters concurrently with the execution of this Agreement (the “"initial KPMG letter”"), the Parent Guarantor Issuer shall have furnished to the Representative Underwriters a letter (the “"bring-down KPMG letter”") of such accountants, addressed to the Underwriters and dated the Delivery Closing Date (i) confirming that they are independent public accountants within the meaning under Rule 101 of the Securities Act American Institute of Certified Public Accountants' Code of Professional Conduct 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 its interpretations and are an independent registered public accounting firm with the Public Company Accounting Oversight Boardrulings thereunder, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Registration Statement and Prospectus, as of a date not more than three five days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor (including pro forma financial information) and other matters covered by the initial KPMG letter letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor The Issuer shall have furnished to the Representative Underwriters a certificate, dated the Delivery Closing Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case President or a Vice President of the Parent GuarantorGeneral Partner on behalf of the Issuer, and one of the co-chief financial officers of the General Partner stating that:
(iA) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, Issuer in Section 1 are true and correct on and as of the Delivery Closing Date, and each of ; the Company and the Parent Guarantor, as applicable, Issuer has complied with all its agreements contained herein herein; and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Delivery Dateset forth in Sections 5(j) and 5(l) have been fulfilled;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iiiB) They have carefully examined the Registration Statement, the Statement and Prospectus and the Pricing Disclosure Package, and, in their opinionopinion (a) as of their respective dates, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date Statement and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, Prospectus did not and do not contain include any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statementtherein, in the light of the circumstances under which they were made) , not misleading, and (Bb) since the Effective Date, respective dates of the Registration Statement and Prospectus no event has occurred that which should have been set forth in a supplement or amendment to the Registration StatementStatement and Prospectus, and (c) except as reflected in or contemplated by the Registration Statement and Prospectus, there shall not have been since the respective dates as of which information is given in the Registration Statement and Prospectus, any material adverse change in the financial condition or in the results of operations, business affairs or business prospects of the Issuer and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (other than changes relating to the economy in general or the Issuer's industry in general and not specifically related to the Issuer);
(C) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceeding for that purpose has been initiated or, to the best of their knowledge, threatened;
(D) All filings required by Rule 424(b) and Rule 430A of the Rules and Regulations have been made; and
(E) Since the Effective Date there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or the Prospectus or any Issuer Free Writing which has not been so set forth, and there has been no document required to be filed under the Exchange Act and the Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Prospectus that has not been so set forthfiled.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, Issuer nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, Registration Statement and Prospectus (i) 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 decree, otherwise than as set forth or contemplated in the Registration Statement and Prospectus, or (ii) since such date there shall not have been any change in the capital stock stock, Partnership Interests or long-term debt of the Parent Guarantor Issuer or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise)general affairs, results of operations, stockholders’ equity, propertiesbusiness prospects, management, business financial position, stockholders' or prospects unitholders' equity, as applicable, or results of operations of the Parent Guarantor Issuer and its subsidiaries, including otherwise than as set forth or contemplated in the Company, taken as a wholeRegistration Statement and Prospectus (exclusive of any amendment or supplement thereto after the date hereof), the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeXxxxxx Brothers Inc., so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Notes being delivered on the Delivery Closing Date on the terms and in the manner contemplated in the Registration Statement and Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ok) 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 NYSE New York Stock Exchange ("NYSE") or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor Issuer on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal Federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States States, including, without limitation, terrorist activities after the date hereof, or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), ) as to make it, in the judgment of the RepresentativeXxxxxx Brothers Inc., impracticable or inadvisable to proceed with market the public offering Notes or delivery to enforce contracts for the sale of the Securities being delivered on the Delivery Date on the terms and Notes in the manner contemplated in the Registration Statement and Prospectus. .
(l) On the Closing Date, the Notes shall be rated at least BBB- by S&P and Baa3, by Xxxxx'x and the Issuer shall have delivered to the Underwriters a letter dated on or before the Closing Date from each such rating agency, or other evidence satisfactory to Xxxxxx Brothers Inc., confirming that the Notes have such ratings; and subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded debt securities of the Issuer by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Issuer's debt securities.
(m) The Issuer shall have furnished a Secretary's Certificate of the secretary of the General Partner in form and substance satisfactory to you.
(n) Xxxxx & Xxxxxxx L.L.P. shall have been furnished with such other documents and opinions, in addition to those set forth above, as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in this Agreement and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(o) 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 (Arden Realty Limited Partnership)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings Registration Statement (including, without limitation, the final term sheet prepared including any filing pursuant to Section 5(a)(iRule 462(b) hereof) required by Rule 433 shall have been madeunder the Securities Act), and no such filings shall have been made without the consent of the Representativehas become effective; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and . A prospectus containing the Rule 430A Information shall have been filed with the Commission in accordance with Rule 497 (or a post-effective amendment providing such information shall not have notified been filed and declared effective in accordance with the Company requirements of any objection to the use of the form of the Registration StatementRule 430A).
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx Chance US LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Ropes & Bird Xxxx LLP shall have furnished to the Representative its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in and covering the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, matters substantially in the form attached hereto as Exhibit A-3B-1, along with its negative assurance letter substantially in the form attached hereto as Exhibit B-2.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx Chance US LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gf) At the time of execution of this Agreement, the Representative shall have received from KPMG Deloitte & Touche LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hg) With respect to the letter of KPMG Deloitte & Touche LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished caused Deloitte & Touche LLP to furnish to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ih) Each of the The Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the executed on its behalf by its (a) Chief Executive Officer or President or equivalent officer and the (b) its Chief Financial Officer, in the case of the Parent Guarantor, Officer or equivalent officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, except for any such representation or warranty that speaks only as of an earlier date or time, which is true and each correct as of such earlier specified date and time, and the Company and the Parent Guarantor, as applicable, has complied in all material respects 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined reviewed the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, misleading and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, Statement or the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth;
(i) The Company shall have furnished to the Representative a copy, duly executed by the Company, of the KDA Irrevocable Exchange and Subscription Agreement.
(j) The Underwriters Company shall have received an furnished to the Representative, a copy, duly executed copy by the Company, of the Paying Agency CDO Securities Irrevocable Exchange and Subscription Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the The Company shall have caused to be prepared and submitted furnished to the NYSE Representative, a listing application with respect to copy, duly executed by the NotesCompany, of the Transition Services Agreement.
(l) The Securities Company shall be eligible for clearance have furnished to the Representative, a copy, duly executed by the Company, of the License and settlement through Clearstream and EuroclearReferral Agreement.
(m) Neither The Company shall have furnished to the Parent GuarantorRepresentative, nor any of its subsidiariesa copy, including duly executed by the Company, of the Registration Rights Agreement.
(n) The Company shall have sustainedfurnished to the Representative, a copy, duly executed by the Company and KDA, of the Overhead Allocation Agreement.
(o) The Company shall have furnished to the Representative, a copy, duly executed by KDA, of the Assignment and Assumption Agreement.
(p) Prior to such Delivery Date, the Company and KDA shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(q) (A) Neither the Company nor KDA shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectustheir respective formation, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (iiB) since such date there shall not have been any change in the capital stock (except as otherwise disclosed in the Preliminary Prospectus) or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, KDA or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, KDA taken as a whole, the effect of which, in any such case described in clause (iA) or (iiB), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(or) 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 NYSE New York Stock Exchange, The NASDAQ Global Market or in the over-the-counter marketAmerican Stock Exchange, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter marketexchange, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal United States Federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(s) The NASDAQ Global Market shall have approved the Stock for inclusion, subject only to official notice of issuance and evidence of satisfactory distribution.
(t) The Lock-Up Agreements, in substantially the form attached hereto as Exhibit A, between the Representative and the officers, directors and stockholders of the Company set forth on Schedule 2, delivered to the Representative on or before the date of this Agreement, shall be in full force and effect on such Delivery Date. 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 Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 . The Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified . If the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of any objection to the use of the form of the Registration Statementthis Agreement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird Xxxxxxx LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative Representatives its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the such Delivery Date, in the form agreed upon by Xxxxxx & Xxxxxxx LLP and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4Representatives.
(fe) The Representative Representatives shall have received from Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Partnership contained herein, to the performance by each of the Company and the Parent Guarantor Partnership of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i)5(a) of this Agreement; all filings (including, without limitation, material required to be filed by the final term sheet prepared Partnership pursuant to Section 5(a)(iRule 433(d) hereof) required by Rule 433 under the Securities Act shall have been made, and no filed with the Commission within the applicable time period prescribed for such filings shall have been made without the consent of the Representativeby Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company Partnership on or prior to the each Delivery Date that the Registration Statement, Statement or 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 Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate limited partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesUnits, the Registration Statement, the Basic Prospectus and any Issuer Free Writing 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 Parent Guarantor Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP Xxxxx Xxxxx L.L.P. shall have furnished to the Representative Underwriters its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorPartnership, addressed to the Underwriters and dated the as of such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially in the form attached hereto as Exhibit A-3.B.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the The Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the as of such Delivery Date, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Underwriters may reasonably require, and the Company and the Parent Guarantor Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gf) At the time of execution of this Agreement, the Representative Underwriters shall have received from KPMG LLP a letter, in form and substance satisfactory to the RepresentativeUnderwriters, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent registered 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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hg) With respect to the letter of KPMG LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Underwriters concurrently with the execution of this Agreement (the “KPMG initial KPMG letter”), the Parent Guarantor Partnership shall have furnished to the Representative Underwriters a letter (the “KPMG bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the as of such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the KPMG bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the KPMG bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the KPMG initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the KPMG initial KPMG letter.
(ih) Each of the Company and the Parent Guarantor The Partnership shall have furnished to the Representative Underwriters a certificate, dated as of the Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the or its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, Partnership in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, Partnership 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 such Delivery Date;
(ii) No 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 personsofficer, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have such officer has carefully examined the Registration Statement, Statement and the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) nothing has come to such officer’s attention that would lead such officer to believe that the Registration Statement, as of the latest Effective Date, (2) and the Prospectus, as of its date and on the as of such Delivery Date, contained or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain contains any untrue statement of a material fact and did not and do not omit omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration StatementProspectus, in the light of the circumstances under which they were made) not misleading, and (B) since the latest Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, Statement or the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(ji) The Underwriters shall have received an executed copy Except as set forth in the Registration Statement and the Pricing Disclosure Package, (i) none of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, Partnership Entities shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary ProspectusPricing Disclosure Package exclusive of any amendment or supplement thereto after the date hereof, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock capitalization or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, Partnership Entities or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholdersunitholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, Partnership Entities taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeUnderwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(nj) Since On or after the date hereof, there Applicable Time (i) no downgrading shall not have occurred any downgrading with respect to any in the rating accorded the Partnership’s debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization,” as such that term is defined in Section 3(a)(62) of the Exchange Act or any public announcement that any Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any of the Partnership’s debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)securities.
(ok) Subsequent to The Units shall have been listed and admitted and authorized for trading on the execution and delivery of this AgreementNew York Stock Exchange.
(l) On or after the Applicable Time, there shall not have occurred any of the following: (i) trading in any securities of the Partnership shall have been suspended by the Commission or by the New York Stock Exchange, (ii) trading in securities generally on the NYSE or in the over-the-counter market, or trading in any securities of the Company New York Stock Exchange or the Parent Guarantor on any exchange or in the over-the-counter marketNASDAQ Global Select Market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (iiiii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iiiiv) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (ivv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeUnderwriters, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(m) The Lock-Up Agreements between the Underwriters and the officers, directors and certain unitholders of the Partnership set forth on Schedule 3, delivered to the Underwriters on or before the date of this Agreement, shall be in full force and effect on such Delivery Date. 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 (EnLink Midstream Partners, LP)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 . The Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 or, to the knowledge of the Company, threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified . If the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of any objection to the use of the form of the Registration Statementthis Agreement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, which in the opinion of Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, LLP is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesShares, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx White & Bird Case LLP shall have furnished to the Representative Representatives its written opinion and its 10b-5 negative assurance letter, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the form attached hereto as Exhibit A-3C-1.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 several obligations of the Underwriters hereunder to purchase the Securities under this Agreement are subject to the accuracy, when made and on satisfaction of each of the Delivery Date, of following conditions:
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct on the Parent Guarantor contained herein, to Closing Date with the performance by each same force and effect as if made on and as of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:Closing Date.
(ab) The Prospectus Supplement shall have been timely filed with the ASC under the Shelf Procedures within the applicable time period prescribed for such filing thereunder and the Prospectus Supplement shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and, in each case, in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i5(a) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus part thereof shall have been issued and no proceeding or examination for such that purpose shall have been initiated or or, to our knowledge, threatened by the Commission; any request no order having the effect of ceasing or suspending the distribution of the Commission for inclusion Securities or the trading in the Securities or any other securities of additional information the Company shall have been issued or proceedings therefore initiated or, to our knowledge, 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 the Prospectus or otherwise Prospectuses, including documents deemed to be incorporated by reference therein, shall have been complied withfiled to which the Underwriters objected; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered Statement and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Packageall amendments thereto, or any amendment or supplement theretomodifications thereof, contains an untrue statement if any, shall constitute full, true and plain disclosure of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 facts regarding the Company and the Parent Guarantor Securities and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any an untrue statement of a material fact and did not and do not or omit to state a material fact required to be stated therein or necessary to make the statements therein (except not misleading; the Prospectuses and all amendments or supplements thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the case of the Registration Statementstatements therein, in the light of the circumstances under which they were are made) , not misleading, ; and all requests for additional information on the part of the ASC or the Commission shall have been complied with;
(Bc) since You shall have received on the Effective Closing Date a certificate dated the Closing Date, no event has occurred that should have been signed by any two of the Chief Executive Officer, the President and the Chief Financial Officer of the Company, confirming the matters set forth in a supplement Sections 8(a), 8(b) and 8(e) and stating that the Company has complied with all of the -24- agreements and satisfied all of the conditions herein contained and required to be complied with or amendment satisfied by the Company on or prior to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forthClosing Date.
(jd) The Underwriters shall have received an executed copy Since the respective dates as of which information is given in the Paying Agency Agreement.
U.S. Prospectus and the Canadian Prospectus, other than as set forth in the U.S. Prospectus and the Canadian Prospectus (k) Application shall have been made exclusive of any amendments or supplements thereto subsequent to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included this Agreement), (i) there shall not have occurred any change or incorporated by reference any development involving a prospective change in the most recent Preliminary Prospectuscondition, any loss financial or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insuranceotherwise, or from any labor dispute the business, properties, prospects, financial condition or court or governmental actionresults of operations of the Company and its Subsidiaries, order or decree or taken as a whole, (ii) since such date there shall not have been any change or any development involving a prospective change in the share capital stock or in the long-term debt of the Parent Guarantor Company or any of its subsidiariesSubsidiaries and (iii) neither the Company nor any of its Subsidiaries shall have incurred any liability or obligation, including the Company, direct or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a wholecontingent, the effect of which, in any such case described in clause (i8(d)(i), 8(d)(ii) or (ii8(d)(iii), isin your judgment, in the judgment of the Representative, so is material and adverse as to make and, in your judgment, acting reasonably, makes it impracticable or inadvisable to proceed with the public offering or the delivery of market the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the U.S. Prospectus and the Canadian Prospectus.
(ne) Since (i) There shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice be given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the date hereofdirection of the possible change in, any rating of the Company, the Securities or any other securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any downgrading with respect to negative change, nor shall any debt securities notice have been given of any potential or intended negative change, in the outlook for any rating of the Parent Guarantor Company or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on by any such exchange or such market by the Commissionrating organization, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, and (iii) a member state of the European Union or the United States no such rating organization shall have become engaged in hostilities, there given notice that it has assigned (or is considering assigning) a lower rating to the Securities than that on which the Securities were marketed.
(f) You shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions received on the financial markets in Closing Date the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 1 contract
Conditions of Underwriters’ Obligations. The respective several obligations of the Underwriters hereunder are subject to the accuracy, when made and on the Delivery Date, accuracy of the representations and warranties on the part of each of the Company and Western Parties on the Parent Guarantor contained hereindate hereof, at the time of purchase to the performance by each of the Company and the Parent Guarantor Western Parties of its their obligations hereunder, hereunder and to each of the following additional terms and conditionsconditions precedent:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i4(a) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representativethis Agreement; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus Prospectuses or any part thereof shall have been issued and no proceeding or examination for such that purpose shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied withwith to the reasonable satisfaction of the Underwriters; and the Commission shall not have notified the Company Partnership of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Date that the The Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains does not contain an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material material, or omits does not omit to state a any fact which, in the opinion of such counsel, is material and is required to be stated therein or in the documents incorporated by reference therein or is necessary to make the statements therein not misleading, and the Prospectus or the Pricing Disclosure Package, or any supplement thereto, do not include an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material, or do not omit to state any fact which, in the opinion of such counsel, is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) All corporate partnership and limited liability company proceedings and other legal matters incident to the authorization, form execution and validity filing of this Agreement, the Securities, the Registration Statement, any Preliminary Prospectus, the Prospectus Prospectus, the Indenture and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor Partnership shall have furnished to such counsel all documents and information that they or their counsel may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP The Partnership shall have furnished to the Representative its written Representatives at the time of purchase an opinion and its 10b-5 letterof Xxxxx Lord LLP, as U.S. counsel to for the Company and the Parent GuarantorPartnership, addressed to the Underwriters Underwriters, and dated the Delivery Datetime of purchase, with executed copies for each of the other Underwriters, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms attached hereto as Exhibits A-1 and A-2form set forth in Exhibit A hereto. R. Xxxxx XxxxxxFurther, Vice President—Business Strategy and General Counsel of the Parent Guarantor, Partnership shall have furnished to the Representative his written opinion, Representatives at the request time of purchase an opinion of Xxxxxx Xxxxxx LLP, tax counsel for the Company and the Parent GuarantorPartnership, addressed to the Underwriters Underwriters, and dated the Delivery Datetime of purchase, with executed copies for each of the other Underwriters, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the form attached hereto as set forth in Exhibit A-3.B hereto
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Underwriters shall have received from KPMG LLP a letterletter or letters, in form and substance satisfactory to the RepresentativeUnderwriters, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered public accountants 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 rules and regulations thereunder adopted by the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardPCAOB, and (ii) statingstating that, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Pricing Disclosure Package and the Prospectus, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hf) With respect to the letter or letters of KPMG LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Underwriters concurrently with the execution of this Agreement (the “initial KPMG letterletters”), the Parent Guarantor such accounting firm shall have furnished to the Representative Underwriters a letter (the “bring-down KPMG letter”) of such accountantsKPMG LLP, addressed to the Underwriters and dated the Delivery Date date of the time of purchase (i) confirming that they are an independent registered public accountants 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 rules and regulations thereunder adopted by the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardPCAOB, (ii) statingstating that, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three two business days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letterletters.
(ig) Each of the Company and the Parent Guarantor The Representatives shall have furnished received at the time of purchase the favorable opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, addressed to the Representative a certificateUnderwriters, and dated the Delivery Datetime of purchase in form and substance reasonably satisfactory to the Representatives.
(h) Prior to and at the time of purchase, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No no stop order suspending with respect to the effectiveness of the Registration Statement has shall have been issued; issued under the Securities Act and no proceedings or examination for that purpose shall have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company initiated under Section 8(d) or the Parent Guarantor, as applicable, of any objection to the use 8(e) of the form of Securities Act; (ii) neither the Registration Statement or nor any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not thereto shall contain any an untrue statement of a material fact and did not and do not or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (except iii) neither the most recent Preliminary Prospectus nor the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the case of the Registration Statementstatements therein, in the light of the circumstances under which they were are made) , not misleading; (iv) neither the Pricing Disclosure Package nor any amendment or supplement thereto shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (Bv) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Permitted Free Writing Prospectus that has shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not been so set forthmisleading.
(ji) The Underwriters shall have received an executed copy Between the time of execution of this Agreement and the Paying Agency Agreement.
time of purchase, (ki) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any no material adverse change, or any development involving developments that are reasonably likely to result in, individually or in the aggregate, a prospective material adverse change, in or affecting the business, assets, management, condition (financial or otherwise), prospects or results of operations, stockholders’ equity, properties, management, business or prospects operations of the Parent Guarantor and its subsidiaries, including the CompanyPartnership Entities, taken as a whole, shall have occurred or become known and (ii) no transaction which is material and adverse to the Partnership Entities, taken as a whole, shall have been entered into by any of the Partnership Entities or become probable, the effect of which, in any such case described in clause (i) or (ii), which is, in the judgment of the RepresentativeRepresentatives, so material and or adverse as to make it impracticable or inadvisable to proceed with the public offering Offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner Notes as contemplated in by the Prospectus.
(nj) Since the date hereofNo action shall have been taken and no statute, there rule, regulation or order shall not have occurred been enacted, adopted or issued by any downgrading with respect to any debt securities governmental agency or body which would, as of the Parent Guarantor time of purchase, prevent the issuance or sale of the Notes; and no injunction, restraining order or order of any of its subsidiaries, including the Company, other nature by any “nationally recognized statistical rating organization” federal or state court of competent jurisdiction shall have been issued as such term is defined in Section 3(a)(62) of the Exchange Act time of purchase which would prevent the issuance or any public announcement that any such organization has under surveillance or review its rating sale of any debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)the Notes.
(ok) Subsequent The Partnership and XXX shall have delivered to the execution and delivery Representatives at the time of this Agreement, there shall not have occurred any purchase a certificate of the following: (i) trading in securities generally on the NYSE or in the over-the-counter market, or trading in any securities Chief Executive Officer and Chief Financial Officer of the Company or General Partner and XXX GP, respectively, dated the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement time of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make itpurchase, in the judgment form attached as Exhibit C hereto.
(l) The Western Parties shall have furnished to the Representatives such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus as of the Representative, impracticable or inadvisable to proceed with time of purchase as the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 Representatives may reasonably satisfactory to counsel for the Underwritersrequest.
Appears in 1 contract
Samples: Underwriting Agreement (Western Midstream Partners, LP)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of contained herein given by the Company Company, Evercore LP and the Parent Guarantor contained hereinSelling Stockholders, to the performance by each of the Company and the Parent Guarantor Selling Stockholders of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection with or otherwise resolved to the use of the form of the Registration StatementRepresentative’s reasonable satisfaction.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxx & Xxxxxxxx and Xxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesPowers of Attorney, the Stock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) Xxxxxx Xxxxxxx Xxxxxxx & Bird LLP Xxxxxxxx LLP, as counsel to the Company, shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, letter addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, Date substantially in the forms attached hereto as Exhibits A-1 B-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3B-2.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4[Reserved].
(f) [Reserved].
(g) The Representative shall have received from Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxx & Xxxxxxxx and Xxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gh) At the time of execution of this Agreement, the Representative shall have received from KPMG Deloitte & Touche LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered public accountants accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hi) With respect to the letter of KPMG Deloitte & Touche LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG D&T letter”), the Parent Guarantor Company shall have furnished to the Representative a letter (the “bring-down KPMG D&T letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are an independent registered public accountants accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG D&T letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG D&T letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG D&T letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG D&T letter.
(ij) Each of the [Reserved].
(k) [Reserved].
(l) [Reserved].
(m) [Reserved].
(n) The Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration StatementStatement did not, as of the Effective Date, (2) the ProspectusProspectus did not, as of its date and on the applicable Delivery Date, 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, did not and do not contain any untrue statement of a material fact and did not and do not or omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration StatementProspectus and the Pricing Disclosure Package, in the light of the circumstances under which they were made) not misleading, misleading and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth;
(o) Each Selling Stockholder (or one or more attorneys-in-fact on behalf of such Selling Stockholders) shall have furnished to the Representative on such Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, such Selling Stockholder (or the Custodian or one or more attorneys-in-fact) stating that the representations, warranties and agreements of such Selling Stockholder contained herein are true and correct on and as of such Delivery Date and that such 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.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(mi) Neither the Parent Guarantor, Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Pricing Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(oq) 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 NYSE or in the over-the-counter market, New York Stock Exchange or trading in any securities of the Company or the Parent Guarantor 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 or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(r) The New York Stock Exchange shall have approved the Stock for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(s) The Lock-Up Agreements between the Representative and the officers, directors and stockholders of the Company set forth on Schedule 2, delivered to the Representative on or before the date of this Agreement, shall be in full force and effect on such Delivery Date. 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 Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Selling Stockholders contained herein, to the performance by each of the Company and the Parent Guarantor Selling Stockholders of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 or, to the knowledge of the Company, threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx White & Xxxxxxxx Case LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesCustody Agreements, the Powers of Attorney, the Stock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) Xxxxxx & Bird Sidley Austin LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative Representatives its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the such Delivery Date, in substantially the form and substance reasonably satisfactory agreed to with counsel to the RepresentativeUnderwriters.
(e) Xxxxx Xxxxxxxx, General Counsel to the Company, shall have furnished to the Representatives his written opinion addressed to the Underwriters and dated such Delivery Date, in substantially in the forms attached hereto as Exhibit A-4form agreed to with counsel to the Underwriters.
(f) The Representative 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 substantially the form agreed to with counsel to the Underwriters.
(g) The Representatives shall have received from Xxxxx Xxxx White & Xxxxxxxx Case LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gh) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG Ernst & Young LLP a letter, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 S‑X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hi) With respect to the letter of KPMG Ernst & Young LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date Date, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ij) Each The Representatives shall have received on the Delivery Date a certificate of Xxx Xxxxxxxx, Chief Financial Officer, Senior Vice President, Finance and Secretary, in form and substance reasonably satisfactory to the Representatives.
(k) The Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, representations and warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has complied with all of its agreements contained herein and satisfied all of the conditions on its part to be performed or satisfied hereunder at or prior to the such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(jl) The Underwriters Each Selling Stockholder (or the Custodian or one or more attorneys-in-fact on behalf of the Selling Stockholders) shall have received an executed copy furnished to the Representatives on such Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, the Selling Stockholder (or the Custodian or one or more attorneys-in-fact) stating that the representations, warranties and agreements of the Paying Agency Agreement.
(k) Application shall have been made to list Selling Stockholder contained herein are true and correct on and as of such Delivery Date and that the Notes Selling Stockholder has complied with all of its agreements contained herein and has satisfied all of the conditions on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused its part to be prepared and submitted performed or satisfied hereunder at or prior to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclearsuch Delivery Date.
(m) Neither Except as disclosed in the Parent Guarantormost recent Preliminary Prospectus, (i) neither the Company nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including subsidiaries (other than as a result of the Company, grant or exercise of stock options pursuant to equity incentive plans existing on the date hereof and described in the most recent Preliminary Prospectus) or any change, or any development involving a prospective change, change in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since Subsequent to the date hereofexecution and delivery of this Agreement, there (i) no downgrading shall not have occurred any downgrading with respect to any debt securities of in the Parent Guarantor or any of its subsidiaries, including rating accorded the Company, ’s debt by any “nationally recognized statistical rating organization” (as such that term is defined in Section 3(a)(62by the Commission for purposes of Rule 436(g)(2) of the Exchange Act or any public announcement that any Rules and Regulations), and (ii) no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any of the Company’s debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)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 NYSE New York Stock Exchange or in the over-the-counter marketNasdaq National Market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter marketexchange, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(p) The New York Stock Exchange shall have approved the Stock for listing.
(q) The Lock-Up Agreements between the Representatives and the officers, directors and stockholders of the Company set forth on Schedule 3, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date. 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 (Thermon Group Holdings, Inc.)
Conditions of Underwriters’ Obligations. The respective several obligations of the Underwriters to purchase and pay for the Shares being sold hereunder are by the Company to the Underwriters shall be subject to the accuracyaccuracy in all material respects, when made as of the date hereof and on as of the Delivery Closing Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance in all material respects by each of the Company and the Parent Guarantor of its covenants and obligations hereunder, and to each of the following additional terms and conditions:conditions set forth in this Section 6.
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all All filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 424 of the Rules and Regulations shall have been made, and no such filings shall have been made without the consent of the Representative; no . No stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus Statement, as amended from time to time, shall have been issued and no proceeding or examination for such that purpose shall have been initiated or, to the best knowledge of the Company or any Underwriter, threatened or contemplated by the Commission; , and any request of the Commission for inclusion of additional information (to be included in the Registration Statement or the Prospectus or otherwise otherwise) shall have been complied with; and the Commission shall not have notified the Company of any objection with to the use reasonable satisfaction of the form of the Registration StatementUnderwriters.
(b) No Underwriter person or entity shall have discovered and disclosed in writing to the Company or the Underwriters on or prior to the Delivery Date Closing Date, that the Registration Statement, the Statement or Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, thereto contains an untrue statement of a fact which, in the written opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for to the Underwriters, is material material, or omits to state a fact which, in the written opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to On the authorizationClosing Date, form and validity you shall have received the opinion of this AgreementArgue Pearxxx Xxxibson & Myerx, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to XXP counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters you and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating effect that:
(i) The representationsCompany and its subsidiaries have been incorporated and are validly existing as corporations in good standing under the laws of the states or other jurisdictions in which they are incorporated, warranties with full corporate power and agreements authority to own, lease and operate their properties and conduct their businesses as described in the Registration Statement. The Company and its subsidiaries are duly qualified to do business as foreign corporations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the ability of the Company and its subsidiaries taken as a whole to conduct their businesses as described in the Registration Statement. Based solely on such counsel's review of the articles or certificates of incorporation, bylaws, corporate minutes, and such other governing instruments and corporate documents of the Company's subsidiaries as such counsel deemed necessary or advisable for such purpose, the outstanding shares of capital stock of the Company's subsidiaries have been duly authorized and validly issued and, so far as is known to such counsel, are owned by the Company free and clear of any mortgage, pledge, lien, encumbrance, charge or adverse claim, and are not the subject of any agreement or understanding with any person. No options, warrants or other rights to purchase, agreement or other obligations to issue or other rights to convert any obligations into shares of capital stock or ownership interests in the subsidiaries are outstanding.
(ii) The Company's authorized capital stock is as set forth under the heading "Capitalization" in the Prospectus. All outstanding shares of Common Stock, par value $.10 of the Company and the Parent GuarantorShares conform in all material respects to the description thereof in the Prospectus under the heading "Description of Capital Stock", as applicableand the statements in the Prospectus under such caption fairly summarize in all material respects the provisions referred to in the Company's certificate of incorporation, in Section 1 are true bylaws and correct on and as the law of the Delivery DateState of Maryland. The form of certificate used to evidence the Shares filed as an exhibit to the Registration Statement has been approved by the Company's Board of Directors, and each assuming such certificate is signed by the proper and authorized officers of the Company as required by the law of the State of Maryland will comply as to form with the requirements of such law. The outstanding shares of Common Stock of the Company have been duly authorized and are validly issued, fully paid and non-assessable, and were not issued in violation of or subject to any preemptive rights or other rights to purchase or subscribe for securities of the Company. The Shares to be sold by the Company have been duly authorized and, when delivered and fully paid for in accordance with this Agreement, will be validly issued, fully paid and non-assessable, and the Parent Guarantorshareholders of the Company have no preemptive rights with respect to the Shares. Except as disclosed in the Prospectus, as applicablethere are no outstanding options, has complied with all its agreements contained herein warrants, or other rights calling for the issuance of, and satisfied all no present commitments, plans or arrangements of the conditions on its part Company at this time to issue any shares of capital stock of the Company or any security convertible into or exchangeable for capital stock of the Company. Upon delivery of the Shares to be performed sold by the Company and full payment therefor pursuant to this Agreement and registration of the ownership of such Shares by the transfer agent for such Shares, good and valid title to such Shares free and clear of all liens, encumbrances, security interests, restrictions on transfer, equities or satisfied hereunder at claims whatsoever other than those created or prior granted by this Agreement or by the Underwriters, will pass to the Delivery Date;Underwriters.
(iiiii) No Such counsel has been advised by the staff of the Commission that the Registration Statement has become effective under the Act and, to the best knowledge of such counsel after reasonable inquiry, no stop order suspending the effectiveness of the Registration Statement has been issued; issued and no proceedings or examination for that purpose have been instituted or, to or are pending or contemplated under the knowledge Act; any required filing of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and any supplement thereto pursuant to Rule 424(b) of the Pricing Disclosure PackageRules and Regulations has been made in accordance with Rule 424(b).
(iv) The Registration Statement and the Prospectus, and, in their opinion, (A) (1) the Registration Statementand each amendment or supplement thereto, as of their respective effective or issue dates, comply as to form in all material respects with the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as requirements of the Applicable Time, did not Act and do not contain any untrue statement of a material fact the applicable Rules and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein Regulations (except in the case of the Registration Statementthat such counsel need express no opinion or belief as to, in the light of the circumstances under which they were made) not misleadingfinancial and statistical data, financial statements and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared notes and submitted to the NYSE a listing application with related schedules thereto). With respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or documents incorporated by reference in the most recent Preliminary Prospectus, such counsel has no reason to believe, that on the date such documents were filed with the Commission, such documents did not comply as to form in all material respects with applicable requirements of the 1934 Act and the applicable 1934 Act Rules and Regulations (except that such counsel need express no opinion or belief as to financial and statistical data, financial statements and notes and related schedules thereto).
(v) The descriptions in the Registration Statement and Prospectus of contracts, agreements or other legal documents and other documents filed as exhibits to the Registration Statement are accurate in all material respects.
(vi) To the best knowledge of such counsel, no authorization, approval, consent, order, registration or qualification of or with any loss court or interference public, regulatory or governmental body, authority or agency is required with respect to the Company in connection with the transactions contemplated by this Agreement, except such as may be required under the Act, the Rules and Regulations or the 1934 Act or by the NASD, the NYSE or under state laws in connection with the purchase and distribution of the Shares by the Underwriters.
(vii) The Company has the corporate power and authority to enter into this Agreement and to sell and deliver the Shares to be sold by it to the several Underwriters. The filing of the Registration Statement with the Commission has been duly authorized by the Board of Directors of the Company. This Agreement has been duly authorized, executed and delivered by the Company, and is a valid, legal and binding agreement of the Company enforceable against the Company in accordance with its business from fireterms (except to the extent the enforceability of the indemnification, explosionexculpation and contribution provisions of Section 7 hereof may be limited by applicable law and except as enforceability of this Agreement may be limited by bankruptcy, flood insolvency, fraudulent conveyance, reorganization, moratorium and other laws affecting creditors' rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or other calamity, whether at law). The making and performance of this Agreement by the Company and the consummation of the transactions herein contemplated will not result in a violation of the Company's certificate of incorporation or not covered by insurancebylaws or to the best knowledge of such counsel result in a breach or violation of any of the terms and provisions of, or from any labor dispute constitute a default under, or court or governmental action, order or decree or (ii) since such date there shall not have been any change result in the capital stock creation or long-term debt imposition of any lien, charge or encumbrance upon any properties or assets of the Parent Guarantor Company or any of its subsidiariessubsidiaries under, including any applicable Federal or state statute, or under any indenture, mortgage, deed of trust, note, loan agreement, lease, franchise, license, permit or any other agreement or instrument known to such counsel to which the CompanyCompany or any of its subsidiaries is a party or by which they are bound or to which any of the properties or assets of the Company or its subsidiaries are subject, or any changeorder, rule or regulation known to such counsel of any court or public, regulatory or governmental agency, authority or body having jurisdiction over the Company or any development involving a prospective changeof its subsidiaries or their properties, except, in the case of any such violation, breach, default, creation or affecting imposition, to such extent as does not materially adversely affect the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(nviii) Since To the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading best knowledge of such rating).
counsel after reasonable inquiry, (oA) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: are no (i) trading in securities generally on the NYSE individually or in the over-the-counter marketaggregate) legal, governmental or trading in any securities of regulatory proceedings pending or threatened to which the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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
Appears in 1 contract
Samples: Underwriting Agreement (Omega Healthcare Investors Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters Underwriter hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or the F-6 Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement, the F-6 Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the F-6 Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion reasonable judgment of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the UnderwritersUnderwriter, is material or omits to state a fact which, in the opinion reasonable judgment of such counselthe Underwriter, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesDeposit Agreement, the Custody Agreements, the Powers of Attorney, the Offered ADSs, the Registration Statement, the F-6 Registration Statement, the 8-A Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the UnderwritersUnderwriter, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Xxxxxxx Xxxxxxxx & Bird LLP Xxxxxx, P.C. shall have furnished to the Representative Underwriter its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters Underwriter and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, substantially in the forms form attached hereto as Exhibits A-1 Exhibit B-1.
(e) Xxxxxx and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, Calder shall have furnished to the Representative his Underwriter its written opinion, at as Cayman Islands counsel to the request of the Company and the Parent GuarantorCompany, addressed to the Underwriters Underwriter and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, substantially in the form attached hereto as Exhibit A-3B-2.
(ef) Xxxxxx Pun & Xxxxxxxxx X.X. Associates shall have furnished to the Representative Underwriter its written opinion, as Luxembourg Hong Kong counsel to the Company, addressed to the Underwriters Underwriter and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, substantially in the forms form attached hereto as Exhibit A-4B-3.
(fg) Commerce & Finance Law Offices shall have furnished to the Underwriter its written opinion, as PRC counsel to the Company, addressed to the Underwriter and dated such Delivery Date, in form and substance reasonably satisfactory to the Underwriter, substantially in the form attached hereto as Exhibit B-4.
(h) Xxxxxxxxx Xxxxxxx Xxxx & Xxxxx LLP shall have furnished to the Underwriter its written opinion, as U.S. counsel to the Depositary, addressed to the Underwriter and dated such Delivery Date, in form and substance satisfactory to the Underwriter, substantially in the form attached hereto as Exhibit B-5.
(i) The Representative Underwriter shall have received from Xxxxx Xxxx Shearman & Xxxxxxxx LLPSterling, U.S. counsel for the UnderwritersUnderwriter, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesOffered ADSs, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Underwriter may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gj) The Underwriter shall have received from Global Law Office, PRC counsel for the Underwriter, such opinion or opinions, dated such Delivery Date, with respect to the matters as the Underwriter 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.
(k) At the time of execution of this Agreement, the Representative Underwriter shall have received from KPMG LLP Ernst & Young Hua Ming a letter, in form and substance satisfactory to the RepresentativeUnderwriter, addressed to the Underwriters Underwriter and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hl) With respect to the letter of KPMG LLP Ernst & Young Hua Ming referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative concurrently with Underwriter on the execution of this Agreement date hereof (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Underwriter a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters Underwriter and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(im) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Underwriter a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or the F-6 Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure PackagePackage (together with the information included on Schedule 2 hereto), as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(jn) The Underwriters shall have received an executed copy Chief Financial Officer of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted furnished to the NYSE Underwriter a listing application with respect certificate, dated such Delivery Date, to the Notes.Underwriter, substantially in the form attached hereto as Exhibit C.
(lo) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since Since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, (i) neither the Company nor any of its subsidiaries shall 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 or and (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholdersshareholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the reasonable judgment of the RepresentativeUnderwriter, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Offered ADSs being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(op) 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 NYSE New York Stock Exchange, NASDAQ, the Stock Exchange of Hong Kong or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state authorities of the U.S., the PRC, the Cayman Islands or European Union authoritiesHong Kong, (iii) a member state of the European Union U.S., the PRC, the Cayman Islands or the United States Hong Kong shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union U.S., the PRC, the Cayman Islands or the United States Hong Kong or there shall have been a declaration of a national emergency or war by a member state of the European Union U.S., the PRC, the Cayman Islands or the United States Hong Kong or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union U.S., the PRC, the Cayman Islands or United States Hong Kong shall be such), as to make it, in the judgment of the RepresentativeUnderwriter, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Offered ADSs being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(q) NASDAQ shall have approved the Offered ADSs for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(r) The Lock-Up Agreements between the Underwriter and the officers, directors and shareholders of the Company set forth on Schedule 1, delivered to the Underwriter on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(s) The Company and the Depositary shall have executed and delivered the Deposit Agreement, and the Deposit Agreement shall be in full force and effect on such Delivery Date. The Company and the Depositary shall have taken all action necessary to permit the deposit of the Offered Shares and the issuance of the Offered ADSs representing such Offered Shares in accordance with the Deposit Agreement.
(t) The Depositary shall have furnished or caused to be furnished to the Underwriter a certificate satisfactory to the Underwriter of one of its authorized officers with respect to the deposit with it of the Offered Shares against issuance of the Offered ADSs, the execution, issuance, countersignature and delivery of the ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Underwriter may reasonably request.
(u) 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 UnderwritersUnderwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Loyalty Alliance Enterprise Corp)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder to purchase the Firm Units and the Option Units, as the case may be, are subject to the accuracy, when made and on the applicable Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Partnership Parties contained herein, to the accuracy of the statements of the Partnership Parties and the officers of NuStar GP, on behalf of the Partnership, made in any certificates delivered pursuant hereto, to the performance by each the Partnership Parties of the Company and the Parent Guarantor of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i4(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or 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; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company Partnership of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company Partnership on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for the Underwriters, is material or omits to state 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.
(c) All corporate corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesOffered Units, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor Partnership 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) Xxxxxxx Xxxxx Xxxxxx & Bird LLP shall have furnished to the Representative Representatives its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorPartnership Parties, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibits A-1 and A-2. R. Xxxxx XxxxxxExhibit A-1.
(e) Xxx X. Xxxxx, Senior Vice President, General Counsel—Business Strategy Corporate and General Counsel Commercial Law and Corporate Secretary of the Parent GuarantorNuStar GP, shall have furnished to the Representative his Representatives a written opinion, at the request of the Company and the Parent Guarantor, opinion addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4A-2.
(f) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesOffered Units, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor Partnership Parties shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG LLP a letterletter or letters, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are it is an independent registered public accountants accounting firm within the meaning of the Securities Act and are 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 are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter letters of KPMG LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Partnership shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountantsaccountant, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are it is an independent registered public accountants accounting firm within the meaning of the Securities Act and are 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 are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor The Partnership shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case signed on behalf of the Company, Partnership by (1) either the President and the Chief Executive Officer or the Senior Vice President, General Counsel—Corporate and Commercial Law and Corporate Secretary, in each case of NuStar GP, and (2) either the Executive Vice President and Chief Financial OfficerOfficer or the Senior Vice President and Controller, in the each case of the Parent GuarantorNuStar GP, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, Partnership Parties in Section 1 are true and correct on and as of the such Delivery Date, ; and that each of the Company and the Parent Guarantor, as applicable, Partnership Parties has complied with all of its respective agreements contained herein and satisfied all of the respective conditions on its part to be performed or satisfied hereunder at or prior to the such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, Partnership of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in and nothing has come to their opinionattention that would lead them to believe that, (A) (1) the Registration Statement, as of the most recent Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and or do not contain any untrue statement of a material fact and did not and or do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and misleading or (B) since the Effective Datedate of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Prospectus, no an event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus, any Preliminary Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.;
(j) The Underwriters shall have received an executed copy Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) none of the Paying Agency Agreement.
(k) Application shall have been made to list Partnership Parties or the Notes on subsidiaries of the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, Partnership shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Pricing Disclosure Package and the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock capitalization or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, Partnership Parties and the subsidiaries of the Partnership or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise)condition, results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Partnership and its subsidiaries, including the Companysubsidiaries of the Partnership, taken as a whole, whether or not arising from transactions in the ordinary course of business, the effect of which, in any such the case described referred to in clause (i) or (ii)) above, is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Offered Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus.
(nk) Since No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of such Delivery Date, prevent the date hereof, there shall not have occurred any downgrading with respect to any debt securities issuance or sale of the Parent Guarantor Preferred Units; and no injunction, restraining order or order of any of its subsidiaries, including the Company, other nature by any “nationally recognized statistical rating organization” federal or state court of competent jurisdiction shall have been issued as of such term is defined in Section 3(a)(62) Delivery Date which would prevent the issuance or sale of the Exchange Act or any public announcement that any such organization has under surveillance or review its rating of any debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)Preferred Units.
(ol) 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 NYSE, the Nasdaq Stock Market or the NYSE MKT LLC or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor Partnership on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or hereof, the effect of international conditions which on the financial markets in the European Union or United States shall be such), such as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Offered Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(m) Subsequent to the execution and delivery of this Agreement, there shall not have been any decrease in the rating of any debt securities of any of the Partnership Parties that 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, no notice shall have been given of any intended or potential downgrading in the rating accorded such debt securities and no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any securities of any of the Partnership Parties.
(n) The Partnership Parties shall have made commercially reasonable efforts to effect listing of the Offered Units on the NYSE within 30 days of the Initial Delivery Date.
(o) On the Initial Delivery Date, the General Partner, on its own behalf and on behalf of the limited partners of the Partnership, shall have executed and delivered the Amended and Restated Partnership Agreement in form and substance reasonably satisfactory to the Underwriters.
(p) The Partnership shall have furnished to the Underwriters such further information, certificates and documents as the 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 Underwriters hereunder are subject to the accuracyaccuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects), when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 . The Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 in writing by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration StatementStatement or any post-effective amendment thereto.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird Xxxxxxx Coie LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative Representatives its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms form attached hereto as Exhibit A-4.B.
(e) Kleinfeld, Xxxxxx and Xxxxxx, LLP shall have furnished to the Representatives its written regulatory opinion, as regulatory counsel to the Company, addressed to the Underwriters and dated such Delivery Date, substantially in the form attached hereto as Exhibit C.
(f) The Representative Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG CohnReznick LLP a letter, substantially in the form and substance satisfactory to the Representativeattached hereto as Exhibit D, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered public accountants accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus, as of a date not more than three five (5) business days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG CohnReznick LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor CohnReznick LLP shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are an independent registered public accountants accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three five (5) business days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of On the date hereof and on each Delivery Date, the Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the date hereof and such Delivery Date, signed on behalf of the Company by its Chief Financial Officer, regarding certain financial information the Pricing Disclosure Package and the Prospectus, respectively, substantially in the form attached hereto as Exhibit E.
(j) The Company shall have furnished to the Representatives a certificate, dated such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial OfficerOfficer as to such matters as the Representatives may reasonably request, in the case of the Parent Guarantorincluding, stating without limitation, a statement that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct in all material respects (except to the extent already qualified by materiality, in which case such representations, warranties and agreements shall be subject to the accuracy in all respects) on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has shall not have notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list Except as described in the Notes on the NYSE for trading on such exchange andmost recent Preliminary Prospectus, in connection therewith, (i) neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its 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 decree, or (ii) since such date there shall not have been any change in the capital stock (other than the grant of options pursuant to option plans existing on the date hereof or the issuance of shares of Common Stock or other securities issued pursuant to currently outstanding options, warrants or rights whether or not issued under one of those plans) or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), 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 public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(nl) Since Subsequent to the date hereof, there execution and delivery of this Agreement (i) no downgrading shall not have occurred any downgrading with respect to any in the rating accorded the Company’s debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, preferred stock by any “nationally recognized statistical rating organization” (as such that term is defined used by the Commission in Section 3(a)(62) of 15E under the Exchange Act or any public announcement that any Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any of the Company’s debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)or preferred stock.
(om) 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 NYSE The New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market, or in the over-the-counter marketThe NASDAQ Capital Market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter marketexchange, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), in any such case described in clause (i), (ii), (iii) or (iv), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Upon issuance, the Stock will be listed on the NASDAQ Global Select Market.
(o) The Lock-Up Agreements among the Representatives and the officers and directors of the Company and each of the other persons and entities set forth on Schedule II, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(p) On or prior to each Delivery Date, the Company shall have furnished to the Underwriters such further certificates and documents as the 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 (Pacira Pharmaceuticals, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject (x) to the accuracy, accuracy when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Selling Stockholders contained hereinherein (provided that, in the case of this clause (x), the obligations of the Underwriters hereunder shall be subject to the accuracy in all material respects of those representations and warranties that are not qualified as to materiality), (y) to the performance by each of the Company and the Parent Guarantor Selling Stockholders of its their respective obligations hereunder, hereunder and (z) to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus part thereof shall have been issued and no proceeding or examination for such that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, Statement or 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 Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLPXxxxxxxx, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesCustody Agreement, the Powers of Attorney, the Stock, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) Xxxxxx & Bird LLP Xxxxxxxxxx Xxxxxxx PC shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative Representatives its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the such Delivery Date, in substantially the form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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.B.
Appears in 1 contract
Samples: Underwriting Agreement (Itxc Corp)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder to purchase and pay for the Shares that they have severally agreed to purchase pursuant to this Agreement (whether Firm Shares at the Closing Time or, upon exercise of the option granted in Section 3, Option Shares on the Date of Delivery) are subject to the accuracy, when made and on the Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i4(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 of the Securities Act Regulations shall have been made, and no such filings shall have been made without the consent of the Representative; no SunTrust. No stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued under the Securities Act and no proceeding or examination proceedings for such that purpose shall have been initiated instituted or threatened by the Commission; , and any request on the part of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied withwith to the reasonable satisfaction of counsel for the Underwriters; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter The Underwriters shall have discovered and disclosed to received the favorable opinion, dated such Closing Date, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for the Company on and the Selling Shareholder, together with signed or prior to reproduced copies of such opinions for each of the Delivery Date that the Registration Statementother Underwriters, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, substantially in the form of Exhibit B.
(c) The Underwriters shall have received a favorable opinion of Xxxxx Xxxx from Xxxxxx & Xxxxxxxx Bird LLP, counsel for the Underwriters, is material or omits dated such Closing Date, with respect to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Underwriters may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gd) At The Company and the time Selling Shareholder shall have complied with all agreements and satisfied all conditions contained herein in all respects on their respective parts to be performed or satisfied at or prior to such Closing Date; and the representations and warranties of execution the Company set forth in Section 1 and of this Agreement, the Representative Selling Shareholder in Section 2 shall be true and correct in all respects as though expressly made at and as of such Closing Date and the Underwriters shall have received from KPMG LLP a letter, certificates in form and substance satisfactory to counsel for the RepresentativeUnderwriters, dated as of such Closing Date, executed by the Chief Executive Officer and the Chief Financial Officer of the Company (or such other officers as are acceptable to the Underwriters) and the Selling Shareholder to such effect and with respect to the following additional matters:
(i) no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Disclosure Package or the Prospectus has been issued, and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, threatened by the Commission under the Securities Act;
(ii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect.
(e) The Underwriters shall have received from Ernst & Young LLP a letter addressed to the Underwriters and dated the date hereof (i) and such Closing Date, in form and substance satisfactory to the Underwriters, confirming that they are such firm is an independent registered public accountants accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as containing such other statements and information of the date hereof (or, with respect type ordinarily included in accountants "comfort letters" to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 underwriters with respect to the financial information regarding the Company statements and the Parent Guarantor financial and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters information contained in connection with registered public offeringsthe Registration Statement.
(hf) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor The Company shall have furnished to the Representative a letter (the “bring-down KPMG letter”) Underwriters copies of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of agreements between the Company and the Parent Guarantor shall have furnished to directors and executive officers of the Representative a certificate, dated the Delivery Date, of a director, Company in the case form attached hereto as Exhibit A pursuant to which such persons agree generally not to transfer any equity securities of the Company beneficially owned by them or any securities convertible into, or exchangeable for, equity securities of the Company, and on or before the Chief Executive Officer and 90th day after the Chief Financial Officer, in the case date of this Agreement without your prior written consent. If any of the Parent Guarantorconditions specified in this Section 8 shall not have been fulfilled when and as required by this Agreement to be fulfilled, stating that:
(i) The representations, warranties and agreements of this Agreement may be terminated by the Underwriters on notice to the Company and the Parent Guarantor, as applicable, Selling Shareholder in Section 1 are true and correct on and as writing of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder such termination at any time at or prior to the Delivery such Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of and such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, termination shall be without liability of any objection party to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statementother party, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, except as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forthSection 11.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Manager contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Company shall have been made, complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; the Registration Statement and no such filings shall all post-effective amendments thereto have been made without become effective under the consent of the RepresentativeSecurities Act; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no stop order suspending or preventing or suspending the use of the Prospectus or any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus shall have been issued by the Commission and no proceeding or examination for such purpose proceedings therefor shall have been initiated or threatened by the Commission; any request all requests for additional information on the part of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied withwith to your reasonable satisfaction; and the Commission all necessary regulatory or stock exchange approvals shall not have notified the Company of any objection to the use of the form of the Registration Statementbeen received.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus Pricing Disclosure Package or the Pricing Disclosure PackageProspectus, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) No prospectus or amendment or supplement to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus shall have been filed to which you shall have objected in writing.
(d) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(de) Xxxxxx & Bird Xxxx Xxxxxxx LLP shall have furnished to the Representative Representatives its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, Exhibit A-1.
(f) Xxxx Xxxxxxx LLP shall have furnished to the Representative his Representatives its written opinion, at as tax counsel to the request of the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the form attached hereto as Exhibit A-2.
(g) Xxxxx & Lardner LLP shall have furnished to the Representatives its written opinion, as counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(fh) The Representative Representatives shall have received from Xxxxx Xxxx Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gi) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG Xxxxx Xxxxxxxx, LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent registered public accountants with respect to the Company within the meaning of the Securities Act Act, the Rules and Regulations and the PCAOB and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Registration Statement, Pricing Disclosure Package and 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hj) With respect to the letter of KPMG Xxxxx Xxxxxxxx, LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ik) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No Since the date of the latest audited financial statements included in the Registration Statement, Pricing Disclosure Package and Prospectus, (i) the Company has not 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, and since such date, (ii) there has not been any material adverse change, or any development involving a prospective adverse change, in or affecting the business, earnings, condition (financial or otherwise), results of operations, stockholders’ equity, assets, properties, management, affairs or prospects of the Company, and (iii) there has not been any change in the capital stock or long-term debt of the Company;
(iii) The Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement and no order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, contemplated or threatened; and the Commission has not notified ;
(iv) All filings required to have been made by the Company or the Parent Guarantor, as applicable, of any objection pursuant to the use of the form of the Registration Statement or any post-effective amendment theretoRules and Regulations have been made as and when required by such Rules and Regulations; and
(iiiv) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.;
(l) The Securities Manager 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 Manager in Section 2 are true and correct on and as of such Delivery Date, and the Manager has complied with all its agreements contained herein and satisfied all the conditions on its part to be eligible for clearance performed or satisfied hereunder at or prior to such Delivery Date;
(ii) Since the date of the latest audited financial statements included in the Registration Statement, Pricing Disclosure Package and settlement through Clearstream Prospectus, (i) the Manager has not 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, and Euroclear.since such date, (ii) there has not been any material adverse change, or any development involving a prospective adverse change, in or affecting the business, earnings, condition (financial or otherwise), results of operations, stockholders’ equity, assets, properties, management, affairs or prospects of the Manager, and (iii) there has not been any change in the capital stock or long-term debt of the Manager; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, only with respect to information regarding the Manager, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth;
(m) Neither The Company shall have furnished to the Parent GuarantorRepresentatives a certificate, nor any dated such Delivery Date, of its subsidiaries, including Chief Financial Officer substantially in the Company, form of Exhibit B hereto.
(n) (i) The Company shall not have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Registration Statement, Pricing Disclosure Package and Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, assets, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(o) Subsequent to the execution and delivery of this AgreementAgreement (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as that term is defined by the Commission for purposes of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(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 New York Stock Exchange or the NYSE MKT or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(q) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.
(r) [RESERVED]
(s) The Management Agreement shall be in full force and effect.
(t) [RESERVED]
(u) The Company shall have furnished to the Representatives such further certificates and documents confirming the representations and warranties, covenants and conditions contained herein and related matters as the Representatives may reasonably have requested.
(v) No action shall have been taken and no statute, rule, regulation or orders shall have been enacted, adopted or issued be any federal, state or foreign governmental or regulatory authority that would, as of the Initial Delivery Date and any Option Stock Delivery Date, as the case may be, prevent the issuance or sale of the Securities by the Company; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Initial Delivery Date or any Option Delivery Date, as the case may be, prevent the issuance or sale of the Securities by the Company. 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 (Five Oaks Investment Corp.)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made as of the Applicable Time and on the Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Xxxxxxxx Parties contained herein, to the performance by each the Xxxxxxxx Parties of the Company and the Parent Guarantor of its their obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Partnership shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, 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 any request of the Commission for inclusion of additional information in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company Partnership of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company Partnership on or prior to the Delivery Date that the Registration Statement, any Preliminary Prospectus, 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 Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, is material or omits to state a fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleadingmisleading (in the case of any Preliminary Prospectus, the Prospectus or the Pricing Disclosure Package, in light of the circumstances under which such statements were made).
(c) All corporate corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesNotes, the Registration Statement, any Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor Xxxxxxxx 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) Xxxxxx Xxxxxx, Xxxx & Bird Xxxxxxxx LLP shall have furnished to the Representative its Representatives their written opinion and its 10b-5 negative assurance letter, as U.S. counsel to the Company and the Parent GuarantorXxxxxxxx Parties, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Representatives.
(e) The Representatives shall have received from Xxxxx X. Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished internal counsel to the Representative Partnership, his written opinion, at the request of the Company opinion and the Parent Guarantornegative assurance statement, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4Representatives.
(f) The Representative Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx LLPXxxxxxx L.L.P., counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Date, with respect to the issuance and sale of the SecuritiesNotes, the Registration Statement, the most recent Preliminary Prospectus, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor Xxxxxxxx Parties shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG Ernst & Young LLP and Deloitte & Touche LLP a letterletter or letters, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter or letters of KPMG Ernst & Young LLP and Deloitte & Touche LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Partnership shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of On the Company and Delivery Date, the Parent Guarantor General Partner shall have furnished to the Representative Representatives a certificatecertificate of the General Partner, signed by an executive officer of the General Partner, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The the representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, Xxxxxxxx Parties contained in Section 1 of this Agreement are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has Xxxxxxxx Parties have complied with all its of their agreements contained herein and satisfied all the conditions on its their part to be performed or satisfied hereunder at or prior to the Delivery Date;
(ii) No the Prospectus has been timely filed with the Commission in accordance with Section 5(a)(i) of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficer, threatenedthreatened by the Commission; all requests of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise has been complied with; and the Commission has not notified the Company or the Parent Guarantor, as applicable, Partnership of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined since the respective dates as of which information is given in the Registration Statement, the Prospectus Pricing Disclosure Package and the Pricing Disclosure PackageProspectus (exclusive of any amendment or supplement thereto), andthere has been no material adverse change or any development that would reasonably be expected to result in a prospective material adverse change in the financial condition, in their opinionearnings, (A) (1) the Registration Statement, as business or operations of the Effective DateGeneral Partner, the Partnership and its subsidiaries (2taken as a whole) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred from that should have been set forth in a supplement or amendment to contemplated in the Registration Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any amendment or any Issuer Free Writing Prospectus that has not been so set forthsupplement thereto).
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since Since the date of the latest audited most recent financial statements included or incorporated by reference in the most recent Preliminary Prospectus and the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving that would reasonably be expected to result in a prospective change, in or affecting the condition (financial or otherwise)condition, results of operations, stockholders’ equity, properties, managementearnings, business or prospects operations of the Parent Guarantor and its subsidiaries, including the Company, Partnership Entities (taken as a whole) from that set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), which is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Notes being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(nk) Since Subsequent to the date hereof, there execution and delivery of this Agreement (i) no downgrading shall not have occurred any downgrading with respect to any in the rating accorded the Partnership’s debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” (as such that term is defined in Section 3(a)(62by the Commission for purposes of Rule 436(g)(2) of the Exchange Act or any public announcement that any Rules and Regulations), and (ii) no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any of the Partnership’s debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)securities.
(ol) 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 NYSE, NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange Alternext US or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Partnership on any exchange or in the over-the-counter market shall have been suspended or limited or the settlement of such trading shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (iii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iiiiv) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (ivv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), in the case of clauses (iv) and (v), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Notes being delivered on the Delivery Date on the terms and in the manner contemplated in the ProspectusProspectus (exclusive of any amendment or supplement thereto).
(m) The Xxxxxxxx Parties shall have furnished the Representatives such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, letters, documents, 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 obligation of each Underwriter to purchase Securities on the Underwriters hereunder are Closing Date as provided herein is subject to the accuracy, when made and on the Delivery Date, of the representations and warranties of the Company contained herein being true and correct on the Parent Guarantor contained hereindate hereof and on and as of the Closing Date, to the performance by each of the Company and the Parent Guarantor of its covenants and other obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall 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 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i4(a) hereof) required ; and all requests by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or 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; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection with to the use reasonable satisfaction of the form of the Registration StatementRepresentative.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery such Closing Date that the Registration Statement, the Prospectus Time of Sale Information or the Pricing Disclosure PackageProspectus, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesSecurities and the Indenture, the Registration Statement, Time of Sale Information and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Milbank, Tweed, Xxxxxx & Bird XxXxxx LLP shall have furnished to the Representative its written opinion opinions and its 10b-5 letterstatement, as U.S. special counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery such Closing Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3Annex A-1.
(e) Xxxxxx & Xxxxxxxxx X.X. The General Counsel of the Company shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery such Closing Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms form attached hereto as Exhibit A-4Annex A-2.
(f) Xxxxxxxxx LLP shall have furnished to the Representative its written opinion, as regulatory counsel to the Company, addressed to the Underwriters and dated such Closing Date, in form and substance reasonably satisfactory to the Representative, substantially in the form of attached hereto as Annex A-3.
(g) The Representative shall have received from Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letterstatement, addressed to the Underwriters and dated the Delivery such Closing Date, with respect to the issuance and sale of the Securities, the Registration StatementTime of Sale Information, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gh) At the time of execution of this Agreement, the Representative shall have received from KPMG Ernst & Young LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent registered public accountants accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary ProspectusTime of Sale Information, 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hi) With respect to the letter of KPMG Ernst & Young LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery such Closing Date (i) confirming that they are an independent registered public accountants accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ij) Each of the The Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery such Closing Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 3 are true and correct on and as of the Delivery such Closing Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery such Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iiiii) They have carefully examined the Registration Statement, the Prospectus Time of Sale Information and the Pricing Disclosure PackageProspectus, and, in their opinion, (A) (1) the Registration StatementTime of Sale Information, as of the Effective Time of Sale and as of the Closing Date, (2) and the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable TimeClosing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statementtherein, in the light of the circumstances under which they were made) , not misleading, and (B) since the Effective Datedate of Time of Sale Information, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, Time of Sale Information or the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency AgreementProspectus.
(k) Application shall have been made to list Except as described in each of the Notes on the NYSE for trading on such exchange and, in connection therewithRegistration Statement, the Time of Sale Information or the Prospectus, (i) neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary ProspectusTime of Sale Information, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or or
(ii) since such date there shall not have been any change in the capital stock of the Company or the long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise)condition, results of operations, stockholders’ equity, properties, management, management or business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery such Closing Date on the terms and in the manner contemplated in the Prospectus.
(nl) Since Subsequent to the date hereof, there execution and delivery of this Agreement (i) no downgrading shall not have occurred any downgrading with respect to any in the rating accorded the debt securities of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries by any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) of the Exchange Act or any public announcement that any Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any of the debt securities (other than an announcement with positive implications of a possible upgrading, and no implication the Company or any of a possible downgrading of such rating)its subsidiaries.
(om) 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 NYSE New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery such Closing Date on the terms and in the manner contemplated in the Prospectus.
(n) The Company shall have furnished to the Representative a certificate of its Chief Financial Officer, on the date hereof and on the Closing Date, substantially in the form of Annex D hereto.
(o) 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 several obligations of the Underwriters to purchase the Firm Shares hereunder are subject to the accuracy, when made and on the Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus Registration Statement shall have become effective not later than 5:00 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 the Representative, and all filings required by Rules 424(b), 430A and 462 under the Act shall have been timely filed with made.
(b) You shall have received on the Commission Closing Date (and the Additional Closing Date, if any) an opinion of Bass, Berry & Sims PLC, counsel to the Company to the effect set forth in accordance with Section 5(a)(i); all filings (including, without limitation, Exxxxxx B xxxxched hereto. In addition to the final term sheet prepared pursuant to Section 5(a)(i) hereof) opinion required by Rule 433 this Section 9(b), such counsel shall have been made, and no such filings shall have been made without state that during the consent course of his participation in the Representative; no stop order suspending the effectiveness preparation of the Registration Statement or preventing or suspending the use of and the Prospectus and the amendments thereto, nothing has come to the attention of such counsel that has caused him to believe 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; any request of the Commission for inclusion of additional information in given him reason to believe that the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel thereto (except for the Underwriters, is material financial statements and other financial and accounting information or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated data contained therein or is necessary omitted therefrom as to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall which no opinion need be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinionexpressed), at the request of the Company and the Parent Guarantordate thereof, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are contained an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Registration Statement or the Prospectus as of the date of the opinion (except in as aforesaid), contains an untrue statement of a material fact or omits to state a material fact necessary to make the case of the Registration Statementstatements therein, in the light of the circumstances under which they were made) , not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(jc) The Underwriters You shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE Closing Date or Additional Closing Date, as the case may be, an opinion of Powell, Goldstein, Frazer & Murphy LLP, as counsel for trading on such exchange andthe Underwriters, in connection therewithdated the Closinx Xxxx or Xxxxxional Closing Date, as the Company shall have caused to be prepared and submitted to the NYSE a listing application case may be, with respect to the Notesissuance and sale of the Shares, the Registration Statement and other related matters as you may reasonably request, and the Company and its counsel shall have furnished to your counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(ld) The Securities You shall be eligible for clearance have received letters addressed to you and settlement through Clearstream dated the date hereof and Euroclearthe Closing Date or the Additional Closing Date, as the case may be, from the firm of KPMG LLP, independent certified public accountants, substantially in the form heretofore approved by you.
(mi) Neither No stop order suspending the Parent Guarantoreffectiveness of the Registration Statement shall have been issued by the Commission and no proceedings for that purpose shall be pending or, nor any to the knowledge of its subsidiaries, including the Company, shall have sustainedbe threatened or contemplated by the Commission at or prior to the Closing Date or Additional Closing Date, since as the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or case may be; and (ii) since such date there shall not have been any change in the capital stock or long-term debt all of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor representations and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities warranties of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. All opinions, letters, evidence and certificates mentioned above or elsewhere contained in this Agreement shall be deemed true and correct in all material respects (except for such representations and warranties qualified by materiality, which representations and warranties shall be true and correct in all respects) on and as of the date hereof, unless such representation or warranty is as of some other specific date than the date hereof, and on and as of the Closing Date or Additional Closing Date, as the case may be, as if made on and as of the Closing Date or Additional Closing Date, as the case may be, and you shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company (or such other officers as are acceptable to you) to the effect set forth in this Section 9(e) and in Section 9(g) hereof.
(f) The Company shall not have failed in any material respect at or prior to the Closing Date or the Additional Closing Date, as the case may be, to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date or Additional Closing Date, as the case may be.
(g) The Company shall have furnished or caused to have been furnished to you such further certificates and documents as you shall have reasonably requested.
(h) At or prior to the Closing Date, you shall have received the written commitment Lock-Up Agreements, in the form of Exhibit A attached hereto, from each of the Company's executive officers and directors.
(i) At or prior to the effective date of the Registration Statement, you shall have received a letter from the Corporate Financing Department of the NASD confirming that such Department has determined to raise no objections with respect to the fairness or reasonableness of the underwriting terms and arrangements of the offering contemplated hereby. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are are, in all material respects, reasonably satisfactory in form and substance reasonably satisfactory to counsel you and your counsel. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the satisfaction on and as of the Additional Closing Date of the conditions set forth in this Section 9, except that, if the Additional Closing Date is other than the Closing Date, the certificates, opinions and letters referred to in this Section 9 shall be dated as of the Additional Closing Date and the opinions called for by paragraphs (b) and (c) shall be revised to reflect the Underwriterssale of Additional Shares. If any of the conditions hereinabove provided for in this Section 9 shall not have been satisfied when and as required by this Agreement, this Agreement may be terminated by you by notifying the Company of such termination in writing or by telegram at or prior to such Closing Date, but you shall be entitled to waive any of such conditions.
Appears in 1 contract
Samples: Underwriting Agreement (Pinnacle Financial Partners Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company Partnership Parties and the Parent Guarantor Selling Unitholder contained herein, to the performance by each of the Company Partnership Parties and the Parent Guarantor Selling Unitholder of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Partnership Parties shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 that purpose shall have been initiated or threatened by the Commission; and the Prospectus shall comply with any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statementotherwise.
(b) No Underwriter shall have discovered and disclosed to any of the Company Partnership Parties on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for the Underwriters, is material or omits to state 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.
(c) All corporate corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesUnits, the Transaction Documents, the Registration Statement, the Prospectus and any Issuer Free Writing 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 and the Parent Guarantor Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP Xxxxxx L.L.P. shall have furnished to the Representative its Representatives their written opinion and its 10b-5 letteropinions, as U.S. counsel to for the Company Partnership and the Parent GuarantorSelling Unitholder, addressed to the Underwriters Representatives and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the form attached hereto as Exhibit A-3A-1 and Exhibit A-2, respectively.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 (Penn Virginia GP Holdings, L.P.)
Conditions of Underwriters’ Obligations. The respective several obligations of the Underwriters hereunder are to purchase and pay for the Shares, as provided herein, shall be subject to the accuracyaccuracy in all material respects, when made as of the date hereof and on as of the Delivery Closing Date (and, if applicable, the Option Closing Date), of the representations and warranties of the Company and the Parent Guarantor Selling Shareholders contained herein, to the performance in all material respects by each of the Company and the Parent Guarantor Selling Shareholders of its their covenants and obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all All filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 424 and Rule 430A of the Rules and Regulations shall have been made, and no such filings shall have been made without the consent of the Representative; no . No stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus Statement, as amended from time to time, shall have been issued and no proceeding or examination for such that purpose shall have been initiated or, to the knowledge of the Company or any Underwriter, threatened or contemplated by the Commission; , and any request of the Commission for inclusion of additional information (to be included in the Registration Statement or the Prospectus or otherwise otherwise) shall have been complied with; and the Commission shall not have notified the Company of any objection with to the use reasonable satisfaction of the form of the Registration StatementUnderwriters.
(b) No Underwriter shall have discovered and disclosed in writing to the Company on or prior to the Delivery Closing Date (and, if applicable, the Option Closing Date), that the Registration Statement, the Statement or 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for to the Underwriters, is material material, or omits to state 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 therein, in light of the circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to On the authorizationClosing Date (and, form and validity of this Agreementif applicable, the SecuritiesOption Closing Date), you shall have received the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to opinion of counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters you and dated the Delivery Closing Date (and, if applicable, the Option Closing Date), in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating effect that:
(i) The representationsCompany has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of West Virginia with the corporate power and authority to own, warranties lease and agreements operate its properties and conduct its business as described in the Registration Statement; the Company is duly qualified to do business as a foreign corporation in good standing in each state or other jurisdiction in which its ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the ability of the Company to conduct its business as described in the Registration Statement.
(ii) The Company has duly and validly authorized capital stock as set forth under the heading "Capitalization" in the Prospectus; all outstanding shares of Common Stock of the Company and the Parent Guarantor, as applicable, Shares conform to the description thereof in Section 1 are true and correct on and as the Prospectus under the heading "Description of the Delivery DateCapital Stock", and each the outstanding shares of Common Stock have been duly authorized and are validly issued, fully paid and non-assessable; the Shares to be sold by the Company have been duly authorized and, when delivered and paid for in accordance with this Agreement, will be validly issued, fully paid and non-assessable, and the shareholders of the Company and the Parent Guarantor, as applicable, has complied have no preemptive rights with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior respect to the Delivery Date;Shares.
(iiiii) No Such counsel has been advised by the staff of the Commission that the Registration Statement has become effective under the Act and, to the knowledge of such counsel no stop order suspending the effectiveness of the Registration Statement has been issued; issued and no proceedings or examination for that purpose have been instituted oror are pending or contemplated under the Act.
(iv) The Registration Statement and the Prospectus, and each amendment or supplement thereto, as of their respective effective or issue dates, comply as to form and appear on their face to be appropriately responsive in all material respects to the knowledge requirements of such persons, threatened; the Act and the Commission has not notified applicable rules and regulations (except that such counsel need express no opinion as to the financial statements or other financial data).
(v) The descriptions in the Registration Statement and Prospectus of contracts and other documents filed as exhibits to the Registration Statement are accurate in all material respects; all other material agreements between the Company and third parties expressly referenced in the Prospectus are legal, valid and binding obligations of the Company.
(vi) No authorization, approval, consent, order, registration or qualification of or with of any court or governmental body, authority or agency is required with respect to the Company in connection with the transactions contemplated by this Agreement, except such as may be required under the Act or the Parent Guarantor, Rules and Regulations or as applicable, of any objection to may be required by the use NASD or under state securities laws in connection with the purchase and distribution of the form Shares by the Underwriters.
(vii) The filing of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined has been duly authorized by the Registration StatementBoard of Directors of the Company. This Agreement has been duly authorized, executed and delivered by the Prospectus Company. The performance of this Agreement and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as consummation of the Effective Date, (2) transactions herein contemplated will not result in a violation of the Prospectus, as Company's Articles of its date Incorporation or Bylaws or result in a breach or violation of any of the terms and on the Delivery Dateprovisions of, or (3) the Pricing Disclosure Packageconstitute a default under, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except result in the case creation or imposition of the Registration Statementany lien, in the light charge or encumbrance upon any properties or assets of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurancestatute, or from under any labor dispute or court or governmental actionindenture, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt mortgage, deed of the Parent Guarantor or any of its subsidiariestrust, including the Companynote, loan agreement, sale and leaseback arrangement, or any change, other agreement or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any instrument known to such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as counsel to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of which the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange is a party or by which its bound or to which any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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.of
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are Underwriter to use its reasonable efforts to sell the Common Shares as provided herein shall be subject to the accuracy, when made as of the date and on the Delivery hereof, and as of each Closing Date, of the representations and warranties of the Company Fund and the Parent Guarantor Investment Adviser contained herein, to the performance by each of the Company and the Parent Guarantor them of its their respective obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Prospectus Registration Statement shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, become effective and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or 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 that purpose shall have been initiated instituted or, to the knowledge of the Fund, the Investment Adviser or the Underwriter, threatened by the Commission; , and any request of the Commission for inclusion of additional information (to be included in the Registration Statement or the Prospectus or otherwise otherwise) shall have been complied with; and the Commission shall not have notified the Company of any objection with to the use of the form of the Registration StatementUnderwriter's satisfaction.
(b) No The Underwriter shall not have discovered and disclosed to advised the Company on or prior to the Delivery Date Fund that the Registration Statement, the Prospectus Statement or the Pricing Disclosure PackageProspectus, or any amendment or supplement thereto, contains an untrue a statement of a fact which, that in the Underwriter's opinion of Xxxxx Xxxx & Xxxxxxxx LLPis untrue and is material, counsel for the Underwriters, is material or omits to state a fact which, that in the Underwriter's opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to Except as contemplated in the authorization, form and validity of this Agreement, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating subsequent 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 Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Registration Statement and the Prospectus, as there shall not have been any material change in the capitalization of a date not more the Fund (other than three days prior sales of shares pursuant to this Agreement or the date hereofCash Purchase Plan), or any material adverse change, or any development that may reasonably be expected to cause a material adverse change, in the conclusions and findings condition (financial or other), business, prospects, net worth or results of such firm with respect to operations of the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offeringsFund.
(hd) With respect The Underwriter shall have received by the first day on which sales are permitted to be made by the Underwriter hereunder (the "Commencement Date") and at every other date specified in Section 4(n) hereof, opinions of Fund Counsel, which opinion may rely, in part as to matters of Maryland law, upon an opinion from other counsel to the letter of KPMG LLP referred to in Section 7(g) aboveFund, and delivered satisfactory to the Representative concurrently with Underwriter (and upon which the execution of this Agreement (Underwriter shall be entitled to rely to the “initial KPMG letter”same extent as Fund Counsel), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes Commencement Date or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectussuch other date, as of a date not more than three days prior applicable, to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating effect that:
(i) The representations, warranties Fund has been duly established and agreements is validly existing as a corporation in good standing under the laws of the Company State of Maryland, the Investment Adviser has been duly incorporated and is validly existing as a corporation in good standing under the Parent Guarantor, as applicable, in Section 1 are true and correct on and as laws of the Delivery Date, and each State of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;Michigan.
(ii) No Each of the Fund and the Investment Adviser has the corporate power and authority to own, lease and operate its respective properties, to execute, deliver and perform this Agreement and the Fund Agreements to which it is a party, and to conduct its respective business as described in the Registration Statement and the Prospectus.
(iii) Each of the Fund and the Investment Adviser is duly qualified as a corporation to transact business and is in good standing in the jurisdiction of its principal place of business and is duly qualified to do business in each jurisdiction where such qualification is required, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Fund, the Investment Adviser.
(iv) The Fund has an authorized, issued and outstanding capitalization as set forth in the Prospectus as of the dates specified therein. All of the outstanding Common Shares have been duly authorized by requisite corporate action on the part of the Fund and validly issued, are fully paid and non-assessable by the Fund and conform to the description thereof in the Prospectus.
(v) The Common Shares have been duly and validly authorized, and, when issued and delivered to and paid for by the purchasers thereof pursuant to this Agreement, will be fully paid and nonassessable and conform to the description thereof in the Prospectus; the issuance of the Common Shares is not subject to any preemptive or other rights to subscribe for any of the Common Shares under any indenture, mortgage, deed of trust, lease or other agreement or instrument to which the Fund is a party or by which the Fund or any of its properties are bound, or under the Articles of Incorporation or By-Laws of the Fund, or under the Maryland General Corporation Law; all action required to be taken for the authorization, issue and sale of the Common Shares have been validly and sufficiently taken; the form of certificate, if any, used to evidence the Common Shares is in proper form and complies with all applicable statutory requirements; and the Common Shares are the subject of an effective registration statement permitting their sale in the manner contemplated by this Agreement.
(vi) This Agreement has been duly authorized, executed and delivered by the Fund and the Investment Adviser, complies with all applicable provisions of the 1933 Act, the 1940 Act, the Advisers Act and the rules and regulations under such acts and constitutes a valid and binding agreement of the Fund, the Investment Adviser and NAIC, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(vii) Each of the Fund Agreements have been duly authorized, executed and delivered by the Fund and the Investment Adviser, as the case may be, comply as to form in all material respects with all applicable provisions of the 1933 Act, the 1940 Act, the Advisers Act and the rules and regulations under such acts and constitute the valid and binding obligation of each of the Fund and the Investment Adviser, enforceable in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(viii) The Registration Statement has become effective under the 1933 Act; to the knowledge of such counsel after due inquiry, no stop order suspending the effectiveness of the Registration Statement has been issued; issued and no proceedings or examination proceeding for that purpose have has been instituted oror threatened by the Commission.
(ix) The Registration Statement, when it became effective, and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission (and at each Closing Date on or prior to the knowledge date of the opinion), complied as to form in all material respects with the requirements of the 1933 Act, the 1940 Act and the Rules and Regulations.
(x) The description in the Registration Statement and Prospectus of statutes, legal and governmental proceedings, contracts and other documents are accurate in all material respects and fairly present the information required to be shown; and such counsel do not know of any statutes or legal or governmental proceedings required to be described in the Prospectus that are not described as required.
(xi) To the best of such personscounsel's knowledge and information, threatenedthere are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments of the Fund or the Investment Adviser that are required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those respectively described or referred to therein or filed as exhibits thereto, the descriptions thereof and references thereto are correct in all material respects, and 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 or lease so described, referred to or filed.
(xii) No consent, approval, authorization or order of any court or governmental authority or agency is required in connection with the sale of the Common Shares pursuant to this Agreement, except such as has been obtained under the 1933 Act, the 1940 Act or the Rules and Regulations or such as may be required under state securities laws; and the Commission has not notified execution, delivery and performance of, and the Company or consummation of the Parent Guarantortransactions contemplated by, this Agreement and the Fund Agreements by each of the Fund and Investment Adviser, as applicable, will not conflict with, or constitute or result in a breach or violation by the Fund or the Investment Adviser of or a default under, any objection to the use of the form of the Registration Statement terms or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinionprovisions of, (A) (1) any contract, indenture, mortgage, loan agreement, note, lease or other instrument known to such counsel to which the Registration StatementFund or the Investment Adviser is a party or by which any of them is bound or to which any of their property or assets are subject, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Dateprovisions of the Articles of Incorporation or By-Laws of the Fund, no event has occurred that should have been set forth in a supplement or amendment the articles of incorporation or by-laws of the Investment Adviser or (C) any statute, or any order, rule or regulation of any court or governmental agency or body, applicable to the Registration Statement, Fund or the Prospectus Investment Adviser or any Issuer Free Writing Prospectus that has not been so set forthof their businesses or properties.
(jxiii) The Underwriters shall have received an executed copy Fund is registered with the Commission under the 1940 Act as a closed-end diversified management investment company, and all required action has been taken by the Fund under the 1933 Act, the 1940 Act and the Rules and Regulations to make and consummate the Offer; the provisions of the Paying Agency AgreementArticles of Incorporation and By-Laws of the Fund comply in all material respects with the requirements of the 1940 Act and the rules and regulations thereunder; and, to the best of such counsel's knowledge and information, no order of suspension or revocation of such registration under the 1940 Act, pursuant to Section 8(e) of the 1940 Act, has been issued or proceedings therefor initiated or threatened by the Commission.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(lxiv) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference information in the most recent Preliminary ProspectusProspectus (and statement of additional information) under the captions "The Fund", any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor "Investment Objective and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(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 NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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.Policies,"
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective several obligations of the Underwriters hereunder to purchase and pay for the Securities pursuant to this Agreement are subject to the accuracyperformance by the Company, when made and on the Delivery Datein all material respects, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its their obligations hereunder, hereunder and to each of the following additional terms and conditionsconditions precedent:
(a) The Prospectus shall have been timely filed with On the Commission in accordance with Section 5(a)(i); all filings (includingClosing Date, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Second Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued under the Securities Act and no proceeding or examination for such purpose proceedings therefor shall have been initiated instituted or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter On the Closing Date, you shall have discovered and disclosed to the Company on or prior to the Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains received an untrue statement of a fact which, in the opinion of Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLPXxxxxxxx, as counsel for the Underwriters, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, Closing Date and in form and substance reasonably satisfactory to you and counsel for the RepresentativeUnderwriters, substantially to the effect set forth in Exhibit A hereto.
(c) On the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx XxxxxxClosing Date, Vice President—Business Strategy and you shall have received an opinion of the General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, Closing Date and in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters you and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such substantially to the effect set forth in Exhibit B hereto.
(d) On the Closing Date, you shall have received an opinion and 10b-5 letterof ____________, as counsel for the Underwriters, dated the Delivery Closing Date, with respect to the issuance and sale of the SecuritiesOffered Securities and the related Guarantees, the Registration StatementStatements, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Underwriters may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ge) At the time of execution of this AgreementClosing Date, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Second Registration Statement, as of the Effective Dateit may then be amended or supplemented, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do shall not contain any an untrue statement of a material fact and did not and do not or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (except ii) the Prospectus, as it may then be amended or supplemented, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the case of the Registration Statement, in the light of the circumstances under which they were made, (iii) there shall not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustainedbeen, since the date as of the latest audited financial statements included or incorporated by reference which information is given in the most recent Preliminary ProspectusSecond Registration Statement, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any material adverse change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, operations or business or prospects of the Parent Guarantor and its subsidiaries, including the Companyconsidered as one enterprise, taken as a whole, the effect of which, in any such case described in clause (i) whether or (ii), is, not arising in the judgment ordinary course of business, (iv) the Company and the Guarantor shall have complied with all agreements and satisfied all conditions on their respective parts to be performed or satisfied at or prior to the Closing Date, and (v) the other representations and warranties of the Representative, so Company and the Guarantor set forth in Section 1(a) shall be accurate in all material respects as though expressly made at and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on Closing Date. At the Delivery Date on Closing Date, you shall have received a certificate of the terms President or a Senior or Executive Vice President, and in other senior officers of the manner contemplated in Company and the ProspectusGuarantor approved by you, dated as of the Closing Date, to such effect.
(nf) Since On the Closing Date, you shall have received the letter or letters specified in Exhibit C at the date hereof, there shall not have occurred any downgrading with respect to any debt securities of hereof and on the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating)Closing Date.
(og) Subsequent to the execution and delivery of this AgreementAgreement and prior to the Closing Date, there shall not have occurred been any of the following: (i) trading in securities generally on the NYSE or in the over-the-counter market, or trading in downgrading nor any securities of notice given to the Company or the Parent Guarantor on or any exchange public notice given, in either case by a rating agency described below, of any intended or in potential downgrading or of a possible change that does not indicate the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state direction of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make itpossible change, in the judgment rating accorded any of the RepresentativeCompany's or the Guarantor's securities, impracticable or inadvisable to proceed with including the public offering or delivery Offered Securities and the related Guarantees, by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436(g)(2) under the Securities being delivered on Act.
(h) The Company and the Delivery Date on the terms Guarantor shall have furnished to you and in the manner contemplated in the Prospectus. 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, in form and substance satisfactory to you and to them, such other documents, certificates and opinions as such counsel may reasonably request in order to pass upon the matters referred to in Section 4(d) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company or the Guarantor theretofore to be performed, or the compliance with any of the conditions herein contained. If any of the conditions specified in this Section 4 shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled, this Agreement may be terminated by you on notice to the Company and the Guarantor at any time prior to the Closing Date and such termination shall be without liability of any party to any other party, except as provided in Section 6. Notwithstanding any such termination, the provisions of Sections 7 and 11 shall remain in effect.
Appears in 1 contract
Samples: Underwriting Agreement (Northwest Airlines Inc /Mn)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor Selling Stockholder contained herein, to the performance by each of the Company and the Parent Guarantor Selling Stockholder of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i6(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx Xxxxxx Xxxxxx & Xxxxxxxx LLPXxxxxxx llp, counsel for the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary in order to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor 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) (i) Xxxxxx & Bird Xxxxxxx LLP and (ii) Xxxxx X. Xxxxxx, General Counsel, in each case, shall have furnished to the Representative its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative.
(e) Skadden, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx XxxxxxArps, Vice President—Business Strategy and General Counsel of the Parent GuarantorSlate, Xxxxxxx & Xxxx LLP shall have furnished to the Representative his its written opinion, at as special counsel to the request of the Company and the Parent GuarantorSelling Stockholder, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx Xxxxxx Xxxxxx & Xxxxxxxx LLPXxxxxxx llp, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG Ernst & Young LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG Ernst & Young LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the The Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case of the Parent Guarantor, Officer stating that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the applicable Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.;
(j) The Underwriters Selling Stockholder shall have received an executed copy furnished to the Representative 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 Paying Agency AgreementSelling Stockholder contained herein are true and correct on and as of such Delivery Date and that the 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 in all material respects.
(k) Application shall have been made to list Except as disclosed in the Notes on Pricing Disclosure Package and the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, shall have sustainedProspectus, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Pricing Disclosure Package and the Prospectus, (i) the Company and its subsidiaries, taken as a whole, have not sustained any material loss or interference with its their business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or court or governmental action, order or decree or and (ii) since such date there shall has not have been any material change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Companytaken as a whole, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise)condition, results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ol) 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 New York Stock Exchange or the NYSE Amex or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement or clearance of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(m) The NYSE Amex shall have approved the Stock for inclusion, subject only to official notice of issuance.
(n) The Lock-Up Agreements between the Representative and the officers, directors and stockholders of the Company set forth on Schedule 3, delivered to the Representative on or before the date of this Agreement, shall be in full force and effect on such Delivery Date. 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 (Libbey Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company Partnership, the General Partner and the Parent Guarantor BreitBurn Energy contained herein, to the performance by each the Partnership, the General Partner and BreitBurn Energy of the Company and the Parent Guarantor of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or 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 any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to any of the Company BreitBurn Parties on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for the Underwriters, is material or omits to state 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.
(c) All corporate corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesUnits, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird LLP Xxxxxx L.L.P. shall have furnished to the Representative Representatives its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorPartnership, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibits A-1 Exhibit B.
(e) Each of Xxxxxx & Xxxxxxx LLP, Bright & Xxxxx, Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, Throne Law Office shall have furnished to the Representative his Representatives its written opinion, at as counsel to the request of the Company and the Parent GuarantorPartnership, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the form attached hereto as Exhibit A-3.C.
(ef) Xxxxxx & Xxxxxxxxx X.X. Xxxxxxx Xxxxx LLP, Canadian counsel for Provident, shall have furnished to the Representative Representatives its written opinion, as Luxembourg counsel to the CompanyProvident, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms form attached hereto as Exhibit A-4D.
(g) You shall have received on each Delivery Date a letter from the Reserve Engineers in form and substance satisfactory to the Representatives confirming certain matters concerning their engagement and the use of their Reserve Reports and information derived from their Reserve Reports in the Prospectus.
(fh) The Representative You shall have received from Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gi) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG Pricewaterhouse Coopers LLP a letterletter or letters, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (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 under the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardSecurities Act, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hj) With respect to the letter of KPMG Pricewaterhouse Coopers LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letterInitial Letter”), the Parent Guarantor Partnership shall have furnished to the Representative Representatives a letter (the “bringBring-down KPMG letterLetter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of under the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardSecurities Act, (ii) stating, as of the date of the bringBring-down KPMG letter Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the their initial KPMG letter.
(ik) Each of the Company The Partnership and the Parent Guarantor General Partner shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case signed on behalf of the Company, and Partnership by (1) each of the Co-Chief Executive Officer Officers of the General Partner; and (2) the Chief Financial Officer, in the case Officer of the Parent GuarantorGeneral Partner, stating that:
(i) The representations, warranties and agreements of the Company Partnership and the Parent Guarantor, as applicable, General Partner in Section 1 are true and correct on and as of the such Delivery Date, and that each of the Company Partnership and the Parent Guarantor, as applicable, General Partner has complied with all of its respective agreements contained herein and satisfied all of the respective conditions on its part to be performed or satisfied hereunder at or prior to the such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such personsofficers, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in and nothing has come to their opinionattention that would lead them to believe, (A) )
(1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and or do not contain any untrue statement of a material fact and did not and or do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of other than with respect to the Registration Statement, in the light of the circumstances under which they were made) not misleading, and or (B) since the Effective Date, no an event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.;
(l) The Securities BreitBurn Energy shall be eligible for clearance have furnished to the Representatives a certificate, dated such Delivery Date, signed on behalf of BreitBurn Energy by a duly authorized officer, stating that the representations, warranties and settlement through Clearstream agreements of BreitBurn Energy in Section 2 are true and Euroclearcorrect on and as of such Delivery Date.
(m) Neither Except as described in the Parent Guarantormost recent Preliminary Prospectus, nor any (i) none of its subsidiaries, including the Company, BreitBurn MLP Parties or BreitBurn Energy shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock capitalization or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, BreitBurn MLP Parties or BreitBurn Energy or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, BreitBurn MLP Parties taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(o) 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 NYSE 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 the Parent Guarantor Partnership on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Units being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(o) The Units shall have approved to be listed on The NASDAQ Global Select Market, subject to official notice of issuance.
(p) The Lock-Up Agreements between the Representatives and each of the parties set forth on Schedule III and, in the case of each participant in the Directed Unit Program, the lock-up agreement contained in the Directed Unit Program materials, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date. 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 (BreitBurn Energy Partners L.P.)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder are subject to the accuracy, when made and on each of the Delivery DateClosing Dates, of the representations and warranties of the Company and the Parent Guarantor Selling Shareholder contained herein, to the performance by each accuracy of the statements of the Company and the Parent Guarantor Selling Shareholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholder of its their obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission, and any request for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representatives. The Rule 462(b) Registration Statement, if any, and the Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i4(I)(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or 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; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Delivery Closing Date that the Registration Statement, Statement or 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state a 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the SecuritiesCustody Agreement, the Power of Attorney, the Stock, the Registration Statement, Statement and the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor Selling Shareholder shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird Proskauer Rose LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its Representatives such counsel's written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 letter, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery Date, of a director, in the case of the Company, and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating effect that:
(i) The representations, warranties Company has been duly incorporated and agreements is validly existing as a corporation in good standing under the laws of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as its jurisdiction of the Delivery Dateincorporation, and is duly qualified to do business and is in good standing as a foreign corporation in New York and each of jurisdiction listed in such opinion, and has all corporate power and authority necessary to own or hold its properties and to conduct the Company and the Parent Guarantor, as applicable, 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 Delivery Date;business in which it is engaged.
(ii) No stop order suspending the effectiveness of the Registration Statement The Company has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, an authorized capitalization as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, set forth in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as all of the Applicable Time, did not and do not contain any untrue statement issued shares of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case capital stock of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiariesCompany, including the Company, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Parent Guarantor and its subsidiaries, including the Company, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Stock being delivered on the Delivery Date on Closing Date, have been duly and validly authorized and issued, are fully paid and nonassessable and conform in all material respects to the terms and in the manner contemplated description thereof contained in the Prospectus.
(niii) Since There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the date hereofvoting or transfer of, there shall not have occurred any downgrading with respect to any debt securities shares of the Parent Guarantor Stock pursuant to the Company's charter or by-laws or any agreement or other instrument known to such counsel.
(iv) This Agreement has been duly authorized, executed and delivered by the Company.
(v) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries, including subsidiaries is a party or by which the Company, by any “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62) of the Exchange Act Company or any public announcement that any such organization has under surveillance of its subsidiaries is bound or review its rating of any debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(o) Subsequent to the execution and delivery of this Agreement, there shall not have occurred which any of the following: (i) trading in securities generally on the NYSE properties or in the over-the-counter market, or trading in any securities assets of the Company or any of its subsidiaries is subject (all of which agreements and instruments shall be listed in such opinion), nor will such actions result in any violation of the Parent Guarantor on Charter or by-laws of the Company or any exchange statute, rule or regulation, or any order, known to such counsel, of any court or governmental agency or body or court having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets. Except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby.
(vi) The statements in the over-the-counter marketProspectus under the headings "Description of Capital Stock", shall "Shares Eligible for Future Sale" and "Underwriting" (only with respect to the description of this Agreement) to the extent that they constitute summaries of matters of law or regulation or legal conclusions, have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, reviewed by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of counsel and fairly summarize the European Union or the United States shall have become engaged matters described therein in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a all material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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 Underwritersrespects.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder are shall be subject to the accuracy, when made in all material respects at and on (except as otherwise stated herein) as of the Delivery Datedate hereof and at and as of the Closing Dates (except that representations and warranties qualified by materiality shall be true and correct in all respects), of the representations and warranties of made herein by the Company and the Parent Guarantor contained hereinSelling Stockholders, and to compliance in all respects at and as of the performance Closing Dates by each of the Company and the Parent Guarantor of its obligations hereunderSelling Stockholders with their covenants and agreements herein contained, and to each of the following additional terms and conditions:
(a) The Prospectus Registration Statement, if not heretofore effective, shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, become effective and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued and no proceeding or examination proceedings for such that purpose shall have been initiated or, to the knowledge of the Company or the Representatives, shall be threatened by the Commission; , and any request for additional information on the part of the Commission for inclusion of additional information (to be included in the Registration Statement or the Prospectus or otherwise otherwise) shall have been complied with; and the Commission shall not have notified the Company of any objection with to the use reasonable satisfaction of the form Representatives. Any filings of the Registration StatementProspectus, or any supplement thereto, required pursuant to Rule 424(b) or Rule 434 of the Rules and Regulations, shall have been made in the manner and within the time period required by Rule 424(b) and Rule 434 of the Rules and Regulations, as the case may be.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Date that Neither the Registration Statement, Statement nor the Prospectus or the Pricing Disclosure PackageProspectus, or any amendment or supplement thereto, contains shall contain an untrue statement of a fact which, which in the reasonable opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for to the Underwriters, Representatives is material or omits to state a fact which, which in the reasonable opinion of such counselcounsel to the Representatives is material, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to At the authorization, form and validity time of execution of this Agreement, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor Representatives shall have furnished received from Xxxxxx Xxxxxxxx LLP, independent certified public accountants, a letter, dated the date hereof, in form and substance satisfactory to such counsel all documents and information that they may reasonably request to enable them to pass upon such mattersthe Representatives.
(d) Xxxxxx & Bird LLP The Representatives shall have furnished received from Xxxxxx Xxxxxxxx LLP, independent certified public accountants, a letter, dated the Closing Dates, to the Representative its written opinion and its 10b-5 lettereffect that such accountants reaffirm, as U.S. counsel to of the Company Closing Dates, and as though made on the Parent GuarantorClosing Dates, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially statements made in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel letter furnished by such accountants pursuant to paragraph (c) of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3this Section 8.
(e) Xxxxxx & Xxxxxxxxx X.X. The Representatives shall have furnished to the Representative its written opinionreceived from Xxxxxx Xxxxx & Bockius LLP, as Luxembourg counsel to for the Company, addressed an opinion, dated the Closing Dates, to the Underwriters and dated the Delivery Date, effect set forth in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4I hereto.
(f) The Representative Representatives shall have received from Xxxxxx Xxxxx Xxxx & Xxxxxxx LLP, counsel for Xxxxx and Xxxxxxx Xxxx, an opinion dated the Closing Dates to the effect set forth in Exhibit II hereto.
(g) The Representatives shall have received from Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP, counsel for the Underwriters, such their opinion and 10b-5 letter, or opinions dated the Delivery Date, Closing Dates with respect to the issuance and sale incorporation of the SecuritiesCompany, the validity of the Stock, the Registration Statement, Statement and the Prospectus and the Pricing Disclosure Package and such other related matters as the Representative Alex. Xxxxx may reasonably requirerequest, and the Company and the Parent Guarantor Selling Stockholders shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(gh) At the time of execution of this Agreement, the Representative The Representatives shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in Section 7(g) above, and delivered to the Representative concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor shall have furnished to the Representative a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the Company and the Parent Guarantor shall have furnished to the Representative a certificate, dated the Delivery DateClosing Dates, of a director, in the case Company signed on its behalf by the president and the chief financial officer of the Company, and Company in which such officers shall state to the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, stating effect that:
(i) The representations, warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; , and, to the knowledge of the signers, no proceedings or examination for that purpose have been instituted or, to or are pending or contemplated under the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; andSecurities Act;
(iiiii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Datedate of such certificate, (2) the ProspectusProspectuses, as of its date and on the Delivery Dateamended or supplemented through such date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did does not and do not contain include any untrue statement of a material fact and did not and do not or omit to state a any material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statementtherein, in the light of the circumstances under which they were made) , not misleading; (iii) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, and (B) since the Effective Date, no event has occurred that should have been except as set forth or contemplated in a supplement or amendment to the Registration StatementProspectus, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiariessubsidiaries has incurred any material liabilities or obligations, including the Company, shall have sustained, since the date of the latest audited financial statements included direct or incorporated by reference contingent not in the most recent Preliminary Prospectusordinary course of business, nor entered into any loss or interference with its material transactions not in the ordinary course of business from fire, explosion, flood or other calamity, whether or and there has not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any material adverse change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsproperties, stockholders’ equity, propertiesbusiness affairs, management, business prospects or prospects results of operations of the Parent Guarantor Company and its subsidiaries, including the Company, taken subsidiaries considered as a whole, the effect of which, in or any such case described in clause (i) or (ii), is, change in the judgment capital stock (other than pursuant to the exercise of the Representative, so material outstanding stock options or warrants and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery conversion of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62preferred stock) of the Exchange Act or any public announcement that any such organization has under surveillance or review Company and its rating of any debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(o) Subsequent subsidiaries which is material to the execution Company and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the NYSE or in the over-the-counter market, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, its subsidiaries considered as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus. 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.whole;
Appears in 1 contract
Samples: Underwriting Agreement (Cdnow Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters and the QIU (in its capacity as such) hereunder are subject to the accuracy, when made and on the Delivery Date, of the representations and warranties of the Company TEPPCO Parties contained herein, to the accuracy of the statements of the TEPPCO Parties and the Parent Guarantor contained hereinofficers of the General Partner and the Subsidiary General Partners made in any certificates delivered pursuant hereto, to the performance by each of the Company and the Parent Guarantor TEPPCO Parties of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i4(a); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus Prospectuses or any part thereof shall have been issued and no proceeding or examination for such that purpose shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied withwith to the reasonable satisfaction of the Underwriters; and the Commission shall not have notified the Company TEPPCO Parties of any objection to the use of the form of the Registration Statement.
(b) No Underwriter The Underwriters shall not have discovered and disclosed to the Company TEPPCO Parties on or prior to the Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state a any fact which, in the opinion of such counsel, is material and is required to be stated therein or in the documents incorporated by reference therein or is necessary to make the statements therein not misleading.
(c) All corporate corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form execution and validity delivery of this Agreement, the Securitiesauthorization, execution and filing of the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor TEPPCO Parties shall have furnished to such counsel all documents and information that they or their counsel may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Bxxxxxxxx & Bird LLP Gxxxxxxx LLP, special counsel to the TEPPCO Parties, shall have furnished to the Representative Underwriters its written opinion addressed to the Underwriters and its 10b-5 letterdated the Delivery Date, in form and substance satisfactory to the Underwriters, substantially to the effect set forth in Exhibit B to this Agreement.
(e) Pxxxxxxx X. Xxxxxx, Esq., shall have furnished to the Underwriters her written opinion, as U.S. counsel to Chief Legal Officer of the Company and the Parent GuarantorTEPPCO Parties, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed effect set forth in Exhibit C to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4this Agreement.
(f) The Representative Underwriters shall have received from Xxxxx Xxxx Cadwalader, Wxxxxxxxxx & Xxxxxxxx Txxx LLP, counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related such matters as the Representative Underwriters may reasonably require, and the Company and the Parent Guarantor TEPPCO Parties shall have furnished to such counsel such documents and information as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Underwriters shall have received from each of Deloitte & Touche LLP and KPMG LLP a letterletter or letters, in form and substance satisfactory to the RepresentativeUnderwriters, addressed to the Underwriters and dated the date hereof hereof, each (i) confirming that they are an independent registered public accountants 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 rules and regulations thereunder adopted by the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardPCAOB, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus and the Prospectus, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding of the Company and the Parent Guarantor Partnership and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter or letters of each of Deloitte & Touche LLP and KPMG LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Underwriters concurrently with the execution of this Agreement (the “initial KPMG letterletters”), the Parent Guarantor such accounting firm shall have furnished to the Representative Underwriters a letter (the “bring-down KPMG letter”) of such accountantseach of Deloitte & Touche LLP and KPMG LLP, addressed to the Underwriters and dated the Delivery Date Date, (i) confirming that they are an independent registered public accountants 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 rules and regulations thereunder adopted by the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardPCAOB, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three five days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding of the Parent Guarantor Partnership and other matters covered by the initial KPMG letter letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letterletters.
(i) Each of the Company The Partnership and the Parent Guarantor Subsidiary Partnerships shall have furnished to the Representative Underwriters a certificate, dated the Delivery Date, of a director, in the case chief executive officer and the chief financial officer of the Company, General Partner and the Chief Executive Officer and the Chief Financial Officer, in the case of the Parent Guarantor, Subsidiary General Partners stating that:
: (i) The representationssuch officers have carefully examined the Registration Statement, warranties the Prospectus and agreements the Pricing Disclosure Package; (ii) in their opinion, (1) the Registration Statement, including the documents incorporated therein by reference, as of the Company and most recent Effective Date, (2) the Parent GuarantorProspectus, including any documents incorporated by reference therein, as applicable, in Section 1 are true and correct on of the date of the Prospectus and as of the Delivery Date, and each (3) the Pricing Disclosure Package, as of the Company Applicable Time, did not and do not include any untrue statement of a material fact and did not and do not omit to state a material fact necessary in order to make the Parent Guarantorstatements therein, in the light of the circumstances under which they were made, not misleading; (iii) as applicableof the Delivery Date, has the representations and warranties of the TEPPCO Parties in this Agreement are true and correct; (iv) the TEPPCO Parties have complied with all its their agreements contained herein and satisfied all the conditions on its their part to be performed or satisfied hereunder at on or prior to the Delivery Date;
; (iiv) No no stop order suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus has been issued; issued and no proceedings or examination for that purpose have been instituted or, to the knowledge best of such personsofficer’s knowledge, are threatened; and (vi) the Commission has not notified the Company or the Parent Guarantor, as applicable, Partnership of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iiivii) They have carefully examined since the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as date of the Effective Date, (2) most recent financial statements included or incorporated by reference in the Prospectus, as of its date and there has been no material adverse effect on the Delivery Datecondition (financial or otherwise), results of operations, business or (3) the Pricing Disclosure Package, as prospects of the Applicable TimePartnership Entities, did taken as a whole, whether or not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except arising from transactions in the case ordinary course of the Registration Statementbusiness, except as set forth in or contemplated in the light of the circumstances under which they were made) not misleading, Prospectus; and (Bviii) since the Effective Date, no event has occurred that should have been is required under the Rules and Regulations or the Act to be set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The If any event shall have occurred on or prior to the Delivery Date that requires the Partnership or the Subsidiary Partnerships under Section 4(e) to prepare an amendment or supplement to the Prospectus, such amendment or supplement shall have been prepared, the Underwriters shall have received an executed copy been given a reasonable opportunity to comment thereon as provided in Section 4(e) hereof, and copies thereof shall have been delivered to the Underwriters reasonably in advance of the Paying Agency AgreementDelivery Date.
(k) Application No action shall have been made to list the Notes on the NYSE for trading on such exchange andtaken and no statute, in connection therewithrule, the Company regulation or order shall have caused to be prepared been enacted, adopted or issued by any governmental agency or body which would, as of the Delivery Date, prevent the issuance or sale of the Notes; and submitted to 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 NYSE a listing application with respect to Delivery Date which would prevent the issuance or sale of the Notes.
(l) The Securities Subsequent to the execution and delivery of this Agreement, if any debt securities of any 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 be eligible for clearance have occurred in the rating accorded such debt securities (including the Notes) and settlement through Clearstream and Euroclear(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 any of the Partnership Entities.
(m) Neither On or after the Parent GuarantorApplicable Time, the Notes shall have been accorded a rating of not less than BB (stable) by Standard & Poor’s Ratings Group and not less than Bal (negative) by Mxxxx’x Investors Service, Inc.
(n) Subsequent to the execution and delivery of this Agreement, (i) neither the Partnership nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, 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 or and (ii) since such date except as set forth in the Prospectus, there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Partnership or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholdersunitholders’ equity, properties, management, business or prospects of the Parent Guarantor Partnership and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Notes being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(o) 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 NYSE or in the over-the-counter market, or trading in any securities of the Company New York Stock Exchange or the Parent Guarantor on any exchange or in the over-the-counter market, American Stock Exchange shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdictionNew York Stock Exchange, (ii) a banking moratorium shall have been declared by federal or New York state or European Union State authorities, (iii) a member state of material disruption in commercial banking or clearance services in the European Union or United States, (iv) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (ivv) there shall have occurred such a material adverse change in general economic, political calamity or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or crisis the effect of international conditions which on the financial markets in the European Union or United States shall be such), is such as to make it, in the sole judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Notes being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(p) The Partnership, the Subsidiary Partnerships and the Trustee shall have executed and delivered the Notes, the Base Indenture and the Supplemental Indenture. All such opinions, letterscertificates, evidence letters and certificates documents mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to the Underwriters and to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (TCTM L P)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus Registration Statement, including any Rule 462(b) Registration Statement, shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (includingbecome effective and, without limitationat such Delivery Date, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 shall have been made, and no such filings shall have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto shall have been issued under the Securities Act, no order preventing or suspending the use of the any Preliminary Prospectus or any Issuer Free Writing the Prospectus shall have been issued and no proceeding or examination proceedings for such purpose any of those purposes shall have been initiated instituted or threatened by shall be pending or, to the CommissionCompany’s knowledge, threatened; any and the Company shall have complied with each request of (if any) from the Commission for inclusion of additional information in the Registration Statement or the information. The Prospectus or otherwise shall have been complied with; and filed with the Commission in the manner and within the time frame required by Rule 424(b) (without reliance on Rule 424(b)(8)) or a post-effective amendment providing such information shall not have notified been filed with, and declared effective by, the Company Commission in accordance with the requirements of any objection to the use of the form of the Registration Statement.Rule 430A.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary in order to make the statements therein (in the case of the Prospectus or the Pricing Disclosure Package or any amendment or supplement thereto, in the light of the circumstances under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the SecuritiesStock, the Registration Statement, the Prospectus Prospectus, the Pricing Disclosure Package and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information (other than additional opinions of counsel) that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Bird Xxxxx Xxxx LLP shall have furnished to the Representative its written opinion and its 10b-5 letter, as U.S. counsel to the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-3.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative Representatives its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the such Delivery Date, in form and substance reasonably satisfactory acceptable to the RepresentativeRepresentatives.
(e) Sunstein Kann Xxxxxx & Timbers LLP shall have furnished to the Representatives its written opinion, substantially as intellectual property counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably acceptable to the forms attached hereto as Exhibit A-4Representatives.
(f) The Representative Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLPMintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the SecuritiesStock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents (other than additional opinions of counsel) as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative Representatives shall have received from KPMG Xxxxxx LLP a letter, in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are Xxxxxx LLP is an independent registered public accountants accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the most recent Preliminary Prospectus, as of a date not more than three two days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG Xxxxxx LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Representatives concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Representatives a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three two days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(i) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Representatives a certificate, dated the such Delivery Date, of a director, in the case each of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, in the case Officer on behalf of the Parent Guarantor, stating thatCompany stating:
(i) The representations, That the representations and warranties and agreements of the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the such Delivery Date, and each of the Company and the Parent Guarantor, as applicable, has complied in all material respects 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 such Delivery Date;
(ii) No That 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 personsofficer, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and;
(iii) They have carefully That he or she has examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their his or her opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date Date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, Date did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (except 2) the Prospectus, as of its date and on the applicable Delivery Date did not and does not contain any untrue statement of a material fact and did not and does not omit to state a material fact necessary in order to make the case of the Registration Statementstatements therein, in the light of the circumstances under which they were made, not misleading, and (3) the Pricing Disclosure Package, as of the Applicable Time, did not contain 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 under which they were made, not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus and that has not been so set forth; and
(iv) To the effect of Section 7(j) (provided that no representation with respect to the judgment of the Representatives need be made).
(j) The Underwriters shall have received an executed copy of Except as described in the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewithRegistration Statement, the Pricing Disclosure Package and the Prospectus, (i) neither the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, Subsidiary shall have sustained, since the date of the latest audited financial statements balance sheet included or incorporated by reference in the most recent Preliminary Registration Statement, the Pricing Disclosure Package and the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree decree, or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries, including the Company, Company or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, assets, properties, management, business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, Subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), 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 public offering or the delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(ok) Subsequent to the execution and delivery of this Agreement, Agreement there shall not have occurred any of the following: (i) (A) trading in securities generally on the NYSE New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market or in the over-the-counter marketThe NASDAQ Capital Market, or (B) trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter marketexchange, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeRepresentatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities Stock being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(l) The NASDAQ Stock Market, Inc. shall have approved the Stock for listing on The NASDAQ Global Market, subject only to official notice of issuance and evidence of satisfactory distribution.
(m) The Lock-Up Agreements between the Representatives and the officers, directors and stockholders of the Company set forth on Schedule II, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(n) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering and the Stock.
(o) The Lilly Purchase Agreement shall be in full force and effect, and arrangements reasonably satisfactory to the Representatives shall have been made such that the Private Placement will close simultaneously with the Initial Delivery Date.
(p) On or prior to each Delivery Date, the Company shall have furnished to the Underwriters such further certificates and documents (other than additional opinions of counsel) as the 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 Underwriters Underwriter hereunder are subject to the accuracy, when made and on the each Delivery Date, of the representations and warranties of the Company and the Parent Guarantor contained herein, to the accuracy of any material statements made in any certificates, opinions, affidavits, written statements or letters furnished to the Underwriter or to counsel to the Underwriter pursuant to the provisions hereof, to the performance by each of the Company and the Parent Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); all filings (including, without limitation, the final term sheet prepared pursuant to Section 5(a)(i) hereof) required by Rule 433 Company shall have been made, and no such filings shall have been made without complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the consent of the Representativedate hereof; no stop order suspending the effectiveness of the Registration Statement or 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; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the UnderwritersUnderwriter, is material or omits to state 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the UnderwritersUnderwriter, and the Company and the Parent Guarantor shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Manatt Xxxxxx & Bird Xxxxxxxx, LLP and Xxxxxxx Xxxxxx, Esq., Executive Vice President, General Counsel and Corporate Secretary of the Company shall each have furnished to the Representative Underwriter its written opinion and its 10b-5 letteropinion, as U.S. counsel to the Company and the Parent GuarantorCompany, addressed to the Underwriters Underwriter and dated the such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibits A-1 and A-2. R. Xxxxx Xxxxxx, Vice President—Business Strategy and General Counsel of the Parent Guarantor, shall have furnished to the Representative his written opinion, at the request of the Company and the Parent Guarantor, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, substantially in the form attached hereto as Exhibit A-3B-1 and Exhibit B-2, respectively.
(e) Xxxxxx & Xxxxxxxxx X.X. shall have furnished to the Representative its written opinion, as Luxembourg counsel to the Company, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the forms attached hereto as Exhibit A-4.
(f) The Representative Underwriter shall have received from Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the UnderwritersUnderwriter, such opinion and 10b-5 letteror opinions, dated the such Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative Underwriter may reasonably require, and the Company and the Parent Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gf) At the time of execution of this Agreement, the Representative Underwriter shall have received from KPMG Deloitte & Touche LLP a letter, in form and substance satisfactory to the RepresentativeUnderwriter, addressed to the Underwriters Underwriter and dated the date hereof (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 and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor 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 regarding the Company and the Parent Guarantor and other matters ordinarily covered by accountants’ “comfort letters” to Underwriters underwriters in connection with registered public offerings.
(hg) With respect to the letter of KPMG Deloitte & Touche LLP referred to in Section 7(g) above, the preceding paragraph and delivered to the Representative Underwriter concurrently with the execution of this Agreement (the “initial KPMG letter”), the Parent Guarantor Company shall have furnished to the Representative Underwriter a letter (the “bring-down KPMG letter”) of such accountants, addressed to the Underwriters Underwriter and dated the such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and are an independent registered public accounting firm with the Public Company Accounting Oversight BoardCommission, (ii) stating, as of the date of the bring-down KPMG letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information regarding the Parent Guarantor is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down KPMG letter), the conclusions and findings of such firm with respect to the financial information regarding the Parent Guarantor and other matters covered by the initial KPMG letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial KPMG letter.
(ih) Each of the The Company and the Parent Guarantor shall have furnished to the Representative Underwriter a certificate, dated the such Delivery Date, of a director, in the case of the Company, and the its Chief Executive Officer and the its Chief Financial Officer, Officer in the case of the Parent Guarantor, stating that:form attached hereto as Exhibit C.
(i) The representations, warranties and agreements of Neither the Company and the Parent Guarantor, as applicable, in Section 1 are true and correct on and as of the Delivery Date, and each of the Company and the Parent Guarantor, as applicable, 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 Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such persons, threatened; and the Commission has not notified the Company or the Parent Guarantor, as applicable, of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(j) The Underwriters shall have received an executed copy of the Paying Agency Agreement.
(k) Application shall have been made to list the Notes on the NYSE for trading on such exchange and, in connection therewith, the Company shall have caused to be prepared and submitted to the NYSE a listing application with respect to the Notes.
(l) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(m) Neither the Parent Guarantor, nor any of its subsidiaries, including the Company, subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Parent Guarantor Company or any of its subsidiaries, including the Company, subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, or business or prospects of the Parent Guarantor Company and its subsidiaries, including the Company, subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the RepresentativeUnderwriter, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Parent Guarantor or any of its subsidiaries, including the Company, by any “nationally recognized statistical rating organization” as such term is defined in 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 (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating).
(oj) 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 NYSE New York Stock Exchange or in the over-the-counter marketAmerican Stock Exchange or NASDAQ, or trading in any securities of the Company or the Parent Guarantor on any exchange or in the over-the-counter marketNASDAQ, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking moratorium activities shall have been declared by federal or New York state or European Union authorities, (iii) a member state of the European Union or the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving a member state of the European Union or the United States or there shall have been a declaration of a national emergency or war by a member state of the European Union or the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the European Union or United States shall be such), as to make it, in the judgment of the RepresentativeUnderwriter, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(k) The Lock-Up Agreements between the Underwriter and the executive officers and directors of the Company set forth on Schedule 2, delivered to the Underwriter on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(l) Prior to the Closing Date, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter or counsel for the Underwriter may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the UnderwritersUnderwriter.
Appears in 1 contract