Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions: (a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and (ii) there shall not have occurred any change in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which is, in the judgment of the Managers, so material and adverse as to make it impractical or inadvisable to market the Shares on the terms and in the manner contemplated in the Prospectus. (b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement or omission made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened. (c) The Managers shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, an opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, to the effect that: (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus; (ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary; (iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package; (iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights; (v) this Agreement has been duly authorized, executed and delivered by the Company; (vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion; (vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects; (viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever); (ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and (x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act. (xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein. (d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers. (e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the Managers, from Deloitte & Touche LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter. (f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)). (g) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date. (h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 4 contracts
Samples: Equity Distribution Agreement (PACIFIC GAS & ELECTRIC Co), Equity Distribution Agreement (PACIFIC GAS & ELECTRIC Co), Equity Distribution Agreement (PACIFIC GAS & ELECTRIC Co)
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there The Prospectus shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate filed with the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Commission pursuant to Rule 436(g)(2424(b) under the Securities ActAct within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; and
(ii) there all filings required by Rule 433 under the Act shall not have occurred any change in been made, and no such filings shall have been made without the condition, financial or otherwise, or in the earnings, business or operations consent of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which is, in the judgment of the Managers, so material and adverse as to make it impractical or inadvisable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such dateManager; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has 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 for that purpose has shall have been initiated or, to the knowledge of the Company, or threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Securities Act (in has been received by the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), Company; and all requests for additional information on the part of the Commission shall have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement or omission made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatenedManager’s reasonable satisfaction.
(cb) The Managers shall have received on On each date specified in Section 6(m5(q), and on such other dates as may be reasonably requested by the ManagersManager, an the Manager shall have received opinion letters, dated such date, of XxxxxxXxxxx X. Xxxxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLPSenior Vice President and General Counsel of the Company (or other reasonably acceptable internal counsel of the Company), outside that address substantially the matters set forth in Exhibit B, and Xxxxx Day, Chicago, Illinois, counsel for the Company, dated such date, to that address substantially the effect that:matters set forth in Exhibit C.
(ic) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on On each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o5(r), and on such other dates as may be reasonably requested by the ManagersManager, a letter the Manager shall have received opinions or opinions and negative assurance letters, dated such date, from Hunton & Xxxxxxxx LLP, New York, New York, counsel for the Manager, with respect to such matter as the Manager may reasonably request, 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.
(d) On each date specified in form and substance satisfactory Section 5(p), the Manager shall have received a certificate of the President or any Vice President of the Company, dated such date, as to the Managersmatters set forth in paragraphs (a) and (h) of this Section 8 and to the further effect that the signers of such certificate have examined the Registration Statement, the Prospectus and this Agreement and that, to the best of his or her knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; and
(ii) there has been no material adverse change in the condition of the Company and its subsidiaries taken as a whole, financial or otherwise, whether or not arising in the ordinary course of business, from that set forth or contemplated by the Registration Statement, the Disclosure Package, or the Prospectus.
(e) On each date specified in Section 5(s), the Manager shall have received letters from Deloitte & Touche LLP, independent public accountants for the CompanyCompany (dated each such date, and in form and substance satisfactory to the Manager) advising that (Ai) confirming that they are an independent registered public accounting firm within with respect to the meaning Company as required by the Act and published rules and regulations of the Securities ActCommission thereunder, (ii) in their opinion, the consolidated financial statements and supplemental schedules included or incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus and covered by their opinion filed with the Commission under Section 13 of the Exchange Act comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the Public Company Accounting Oversight Boardpublished rules and regulations of the Commission thereunder, (Biii) statingthat they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholders of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Disclosure Package or Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters may be specified in connection with registered public offerings (the first such letter, and on the “Initial Comfort Letter”basis of such limited review and procedures nothing came to their attention that caused them to believe that: (A) and (C1) updating any material modifications should be made to any unaudited consolidated financial statements of the Initial Comfort Letter with any information that would have been Company included or incorporated by reference in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Disclosure Package or the Prospectus Supplementfor them to be in conformity with generally accepted accounting principles or (2) any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus or any issuer free writing prospectus, do not comply as amended to form in all material respects with the applicable accounting requirements of the Exchange Act and supplemented the rules and regulations of the Commission applicable to Form 10-Q; and (B) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the Disclosure Package or the Prospectus and except as set forth in or contemplated by the Registration Statement, the Disclosure Package or the Prospectus, there were any adverse changes, at a specified date not more than three business days prior to the date of the letter, in the capital stock of the Company, incurrences of long-term debt of the Company on a consolidated basis as compared to the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Disclosure Package or the Prospectus or, as of a specified date, there were any decreases in stockholders’ equity or net current assets (or increases in net current liabilities) of the Company on a consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Disclosure Package or the Prospectus, or for the period from the date of the most recent financial statements included or incorporated by reference in the Disclosure Package or the Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Manager; and (iv) they have carried out specified procedures performed for the purpose of comparing certain specified financial information and percentages (which is limited to financial information derived from general accounting records of the Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such accounting records) included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus with indicated amounts in the financial statements or accounting records of the Company and (excluding any questions of legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them.
(f) All filings Subsequent to the respective dates as of which information is given in the Registration Statement and the Disclosure Package, there shall not have been any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 8 which makes it impractical or inadvisable in the judgment of the Manager to proceed with the Commission required public offering or the delivery of the Shares on the terms and in the manner contemplated by Rule 424 under the Securities Act Disclosure Package.
(g) Subsequent to have been filed by each Time the later of Sale or related Settlement Date (A) the execution and delivery of this Agreement and (B) the immediately preceding Representation Date, (i) no downgrading shall have been made within occurred in the applicable time period prescribed rating accorded any debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is defined by the Commission in Section 3(a)(62) of the Exchange Act (other than downgrades of debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of downgrades of ratings of any third parties insuring such filing debt securities) 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 the debt securities or preferred stock of or guaranteed by Rule 424 the Company (without reliance other than an announcement with positive implications of a possible upgrading and other than with respect to debt securities issued by or on Rule 424(b)(8)behalf of governmental entities for the benefit of the Company solely as a result of any such announcement with respect to any third parties insuring such debt securities).
(gh) Since the most recent dates as of which information is given in the Disclosure Package and the Prospectus there has been no material adverse change in the condition of the Company and its subsidiaries taken as a whole, financial or otherwise, whether or not arising in the ordinary course of business, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which is in the judgment of the Manager so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Shares on the terms and in the manner contemplated by this Agreement and the Prospectus.
(i) The Manager shall not have advised the Company that the Registration Statement, Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the opinion of counsel for the Manager is material or omits to state a fact which in the opinion of counsel for the Manager is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(j) 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 any Settlement Date, 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 any Settlement Date, prevent the issuance or sale of the Shares.
(k) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Manager and prior to any Settlement Date, the Company shall have furnished to the Manager such other customary information, certificates and documents as they may reasonably request.
(l) The Shares shall have been approved for listing on the Exchange, subject only to a official notice of issuance at or prior to the applicable Settlement Date.
(hm) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
(n) The Company shall not have submitted an order to sell Shares in an amount to the extent that the sum of (x) the gross sales price of Shares requested to be sold plus (y) the aggregate gross sales price of shares of Common Stock previously issued and sold pursuant to the Equity Distribution Agreements would exceed the Maximum Amount.
Appears in 3 contracts
Samples: Equity Distribution Agreement (Xcel Energy Inc), Equity Distribution Agreement (Xcel Energy Inc), Equity Distribution Agreement (Xcel Energy Inc)
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) , there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”development involving a prospective change, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the Managerseach Manager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in each Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and Company to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers any Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date that the certificate specified in Section 6(m)5(b) is required to be delivered under Section 6(l) a certificate, dated such date and on such other dates as may be reasonably requested signed by the Managers, an opinion principal financial officer of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated as of such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n6(m) , and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx & Xxxx Xxxxxx LLP, outside counsel for the ManagersCompany, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(n) an opinion and negative assurance letter of Xxxxx, Polk & Xxxxxxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to deliver such opinion and negative assurance letter. The opinion and negative assurance letter of counsel for the Company described in Section 5(c) above shall be rendered to the Managers at the request of the Company and shall so state therein.
(f) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance reasonably satisfactory to the Managers, from Deloitte & Touche LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Class A Common Stock shall be is an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
(j) The Company has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Roku, Inc), Equity Distribution Agreement (Roku, Inc)
Conditions to the Manager’s Obligations. The obligations of each Manager hereunder and under any Terms Agreement to which it is a party will be subject, in its discretion, to the condition that all representations and warranties and other statements of the Managers are subject Company herein are, at and as of each Applicable Time, Settlement Date and Representation Date, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) Since The Prospectus and any supplement thereto required by Rule 424 under the later Act shall have been filed with the Commission pursuant to Rule 424 under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 3(a); all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; 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, to the Company’s knowledge, threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been issued or received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Managers’ reasonable satisfaction;
(Ab) Lxxxxx & Wxxxxxx LLP, counsel for the date Managers, shall have furnished to such Manager, on each Representation Date on which the same is to be delivered pursuant to Section 3(n), such written opinion or opinions, dated as of this Agreement such date, in form and substance satisfactory to such Manager, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(Bc) DLA Piper LLP (US), counsel for the immediately preceding Company, or such other counsel acceptable to the Managers, shall have furnished to such Manager, on each Representation Date:Date on which the same is to be delivered pursuant to Section 3(n), a written corporate opinion, tax opinion and letter, dated as of such date, in form and substance satisfactory to such Manager, in the forms set forth in Annex II(a), Annex II(b) and Annex II(c), respectively, hereto;
(d) The general counsel of the Company, or such other counsel acceptable to the Managers, shall have furnished to such Manager, on each Representation Date on which the same is to be delivered pursuant to Section 3(n), a written certificate, dated as of such date, in form and substance satisfactory to such Manager, in the form set forth in Annex III hereto;
(e) On each Representation Date on which the same is to be delivered pursuant to Section 3(n), each of Ernst & Young LLP and any other auditing firm that has certified any financial statements included in the Registration Statement or the Prospectus shall have furnished to such Manager a letter or letters, dated as of such date, in form and substance satisfactory to such Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement or the Disclosure Package in accordance with AS 4105, Interim Financial Information, and containing other statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters;
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus there shall not have occurred been any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities capital stock or long-term debt of the Company or any of its subsidiaries by or any “nationally recognized statistical rating organization”change, as such term is defined for purposes of Rule 436(g)(2) under or any development involving a prospective change, in or affecting the Securities Act; and
(ii) there shall not have occurred any change in the conditiongeneral affairs, management, financial position, stockholders’ equity or otherwise, or in the earnings, business or results of operations of the Company and its subsidiaries, taken as a whole, from otherwise than as set forth or contemplated in the respective dates of the Registration Statement, the Prospectus and the General Disclosure PackageProspectus, the effect of which iswhich, in the any such case described in clause (i) or (ii), is in such Manager’s judgment of the Managers, so material and adverse as to make it impractical impracticable or inadvisable to market proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.;
(bg) The Managers On or after the date hereof, (i) no downgrading shall have received on each date specified 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 in Section 6(l3(a)(62) a certificate, dated such date and signed by an executive officer of the CompanyExchange Act, to the effect set forth in Section 5(a)(i) and (ii) above and 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;
(h) The Shares have been duly listed, subject to notice of issuance, on the effect that Exchange;
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements of this Agreement or any applicable Terms Agreement; and
(j) The Company shall have furnished or caused to be furnished to such Manager, on each Representation Date on which the same is to be delivered pursuant to Section 3(n), certificates of officers of the Company reasonably satisfactory to such Manager as to the accuracy of the representations and warranties of the Company contained in this Agreement are true herein at and correct as of such date; (ii) , as to the performance by the Company has complied with of all of the agreements and satisfied all of the conditions on its part obligations hereunder to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or, as to the knowledge matters set forth in subsections 6 and (f) of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) this Section as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement or omission made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m), and on such other dates matters as such Manager may be reasonably requested by the Managers, an opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Actrequest.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the Managers, from Deloitte & Touche LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(g) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
and (ii) there shall not have occurred any change in the condition, financial or otherwisechange, or in the earnings, business or operations of the Company and its subsidiaries, taken as any development reasonably likely to become a whole, Material Adverse Effect from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage and that makes it, in the judgment of the ManagersManager’s sole judgment, so material and adverse as to make it impractical or inadvisable impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceeding proceedings for that purpose has or pursuant to Section 8A of the Securities Act have been initiated instituted or are pending or, to the knowledge of the Company, threatened are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m) a certificate of the Secretary of the Company, dated such date, as described in Section 6(m), and .
(d) The Manager shall have received on such other dates as may be reasonably requested by the Managers, each date specified in Section 6(n) an opinion and negative assurance letter of XxxxxxXxxxxxxxx Xxxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated Manager, which opinion and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The negative assurance letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(de) The Managers Manager shall have received on each date specified in Section 6(n6(o) , and on such other dates as may be reasonably requested by the Managers, an opinion a negative assurance letter of Skadden, Arps, Slate, Xxxxxxx Faegre Drinker Xxxxxx & Xxxx Xxxxx LLP, counsel for the ManagersManager, dated such date, in form and substance reasonably satisfactory to the ManagersManager.
(ef) The Managers Manager shall have received on each date specified in Section 6(o6(p), and on such other dates as may be reasonably requested by the Managers, a letter letters dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLPCompany Auditor, current independent registered public accountants accountant for the Company, (A) confirming that they are as of the date of its respective audit report(s), it was an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letterletters from Company Auditor, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (American Virtual Cloud Technologies, Inc.)
Conditions to the Manager’s Obligations. The obligations of each Manager hereunder and under any Terms Agreement to which it is a party will be subject, in its discretion, to the condition that all representations and warranties and other statements of the Managers are subject Company herein are, at and as of each Applicable Time, Settlement Date and Representation Date, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) Since The Prospectus and any supplement thereto required by Rule 424 under the later Act shall have been filed with the Commission pursuant to Rule 424 under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 3(a); all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; 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, to the Company’s knowledge, threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been issued or received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Managers’ reasonable satisfaction;
(Ab) Xxxxxx & Xxxxxxx LLP, counsel for the date Managers, shall have furnished to such Manager, on each Representation Date on which the same is to be delivered pursuant to Section 3(n), such written opinion or opinions, dated as of this Agreement such date, in form and substance satisfactory to such Manager, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(Bc) DLA Piper LLP (US), counsel for the immediately preceding Company, or such other counsel acceptable to the Managers, shall have furnished to such Manager, on each Representation Date:Date on which the same is to be delivered pursuant to Section 3(n), a written corporate opinion, tax opinion and letter, dated as of such date, in form and substance satisfactory to such Manager, in the forms set forth in Annex II(a), Annex II(b) and Annex II(c), respectively, hereto;
(d) The general counsel of the Company, or such other counsel acceptable to the Managers, shall have furnished to such Manager, on each Representation Date on which the same is to be delivered pursuant to Section 3(n), a written certificate, dated as of such date, in form and substance satisfactory to such Manager, in the form set forth in Annex III hereto;
(e) On each Representation Date on which the same is to be delivered pursuant to Section 3(n), each of Ernst & Young LLP and any other auditing firm that has certified any financial statements included in the Registration Statement or the Prospectus shall have furnished to such Manager a letter or letters, dated as of such date, in form and substance satisfactory to such Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement or the Disclosure Package in accordance with AS 4105, Interim Financial Information, and containing other statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters;
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus there shall not have occurred been any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities capital stock or long-term debt of the Company or any of its subsidiaries by or any “nationally recognized statistical rating organization”change, as such term is defined for purposes of Rule 436(g)(2) under or any development involving a prospective change, in or affecting the Securities Act; and
(ii) there shall not have occurred any change in the conditiongeneral affairs, management, financial position, stockholders’ equity or otherwise, or in the earnings, business or results of operations of the Company and its subsidiaries, taken as a whole, from otherwise than as set forth or contemplated in the respective dates of the Registration Statement, the Prospectus and the General Disclosure PackageProspectus, the effect of which iswhich, in the any such case described in clause (i) or (ii), is in such Manager’s judgment of the Managers, so material and adverse as to make it impractical impracticable or inadvisable to market proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.;
(bg) The Managers On or after the date hereof, (i) no downgrading shall have received on each date specified 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 in Section 6(l3(a)(62) a certificate, dated such date and signed by an executive officer of the CompanyExchange Act, to the effect set forth in Section 5(a)(i) and (ii) above and 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;
(h) The Shares have been duly listed, subject to notice of issuance, on the effect that Exchange;
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements of this Agreement or any applicable Terms Agreement; and
(j) The Company shall have furnished or caused to be furnished to such Manager, on each Representation Date on which the same is to be delivered pursuant to Section 3(n), certificates of officers of the Company reasonably satisfactory to such Manager as to the accuracy of the representations and warranties of the Company contained in this Agreement are true herein at and correct as of such date; (ii) , as to the performance by the Company has complied with of all of the agreements and satisfied all of the conditions on its part obligations hereunder to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or, as to the knowledge matters set forth in subsections 6 and (f) of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) this Section as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement or omission made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m), and on such other dates matters as such Manager may be reasonably requested by the Managers, an opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Actrequest.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the Managers, from Deloitte & Touche LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(g) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. (a) The obligations of each of the Managers Manager to purchase and pay for the Shares on the Closing Date are subject to the following conditions:
(ai) Since Subsequent to the later of (A) the date execution and delivery of this Agreement and (B) prior to the immediately preceding Representation Closing Date:
(iA) no order suspending the effectiveness of the Registration Statement or the Post-Effective Amendment shall be in effect, and no proceeding for such purpose shall be pending before or threatened by the Commission; and
(B) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”development involving a prospective change, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the respective dates Time of the Registration Statement, the Sale Prospectus and the General Disclosure Package, the effect of which isthat, in the judgment of the ManagersManager’s judgment, is so material and adverse as to make it impractical or inadvisable impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(bii) The Managers Manager shall have received on each date specified in Section 6(l) the Closing Date a certificate, dated such date the Closing Date and signed by an executive officer of the Company, to the effect set forth that (i) no stop order suspending the effectiveness of the Registration Statement or the Post-Effective Amendment is in Section 5(a)(i) effect as of the Closing Date, and no proceedings for such purpose are pending before or, to such executive officer’s knowledge, threatened by the Commission; and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Closing Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement or omission made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ciii) The Managers Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, Closing Date an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLPXxxxx Day, outside counsel for the Company, dated such datethe Closing Date, in the form set forth in Exhibit B hereto.
(iv) The Manager shall have received on the Closing Date an opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Selling Shareholders, dated the Closing Date, in the form set forth in Exhibit C hereto.
(v) The Manager shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, Xxxxxxxx Islands’ counsel for the Company, dated the Closing Date, in the form set forth in Exhibit D hereto.
(vi) The Manager shall have received on the Closing Date an opinion of Walkers, Cayman Islands’ counsel for the applicable Selling Shareholders, dated the Closing Date, in the form set forth in Exhibit E hereto.
(vii) The Manager shall have received on the Closing Date an opinion and negative assurance letter of Shearman & Sterling (London) LLP, counsel for the Manager, dated the Closing Date, in form and substance satisfactory to the effect that:Manager.
(iviii) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws The Manager shall have received, on each of the State of Californiadate hereof and the Closing Date, with a letter dated the corporate power and authority to own date hereof or leasethe Closing Date, as the case may be, in form and substance satisfactory to operate its properties the Manager, from each of Deloitte Certified Public Accountants S.A. and conduct its business as described in the Registration StatementDeloitte & Touche LLP, the General Disclosure Package independent public accountants, containing statements and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws information of the jurisdiction of its incorporation, has corporate power and authority type ordinarily included in accountants’ “comfort letters” to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, underwriters with respect to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free financial statements and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the General Disclosure PackageProspectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days prior to the Closing Date.
(ix) The Manager shall have received on the Closing Date the “lock-up” agreement, substantially in the form of Exhibit A hereto, between the Manager and the Chief Executive Officer and President of the Company relating to restrictions on sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Manager on or before the date hereof, shall be in full force and effect on the Closing Date.
(b) The obligations of the Manager to purchase Additional Shares hereunder are subject to the delivery to the Manager on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 7(a)(ii) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxx Day, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 7(a)(iii) hereof;
(iii) an opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, outside counsel for the Selling Shareholders, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 7(a)(iv) hereof;
(iv) an opinion of Xxxxxx & Xxxxxx LLP, Xxxxxxxx Islands’ counsel for the Company, dated the Option Closing Date, relating to the Additional Shares have been duly authorized and, when issued to be purchased on such Option Closing Date and delivered in accordance with otherwise to the terms of this Agreement, will be validly issued, fully paid and non-assessable, and same effect as the issuance of such Shares will not be subject to any preemptive or similar rightsopinion required by Section 7(a)(v) hereof;
(v) this Agreement has been duly authorizedan opinion of Walkers, executed Cayman Islands’ counsel for the applicable Selling Shareholders, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and delivered otherwise to the same effect as the opinion required by the CompanySection 7(a)(vi) hereof;
(vi) none an opinion and negative assurance letter of Shearman & Sterling (London) LLP, counsel for the issue or sale of Manager, dated the SharesOption Closing Date, relating to the consummation of Additional Shares to be purchased on such Option Closing Date and otherwise to the transactions contemplated same effect as the opinion required by this Agreement or the performance by the Company of its obligations hereunder will (ASection 7(a)(vii) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinionhereof;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date the Option Closing Date, in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLP, independent public accountants for accountants, substantially in the Company, same form and substance as the letter furnished to the Underwriters pursuant to Section 7(a)(viii) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date; and
(Aviii) confirming that they are an independent registered public accounting firm within such other customary documents as the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, the conclusions and findings of such firm Manager may reasonably request with respect to the financial information good standing of the Company and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate related to the Registration Statement, sale of the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letterAdditional Shares.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(g) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
and (ii) there shall not have occurred occurred, in the Manager’s sole judgment, any change in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as development reasonably likely to become a whole, Material Adverse Effect from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s sole judgment, so material and adverse as to makes it or would make it impractical or inadvisable impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceeding proceedings for that purpose has or pursuant to Section 8A of the Securities Act have been initiated instituted or are pending or, to the knowledge of the Company, threatened are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, ) an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx Xxxxx Xxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated Manager, which opinion and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The negative assurance letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(d) The Managers Manager shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx Faegre Drinker Xxxxxx & Xxxx Xxxxx LLP, counsel for the ManagersManager, dated such date, in form and substance reasonably satisfactory to the ManagersManager.
(e) The Managers Manager shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter letters dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLPCompany Auditor, current independent registered public accountants accountant for the Company, (A) confirming that they are as of the date of its respective audit report(s), it was an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letterletters from Company Auditor, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(g) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, ,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and that set forth in the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) Representation Date a certificate, dated such date Representation Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; Representation Date, (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; Representation Date, (iii) 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 knowledge of the Company, threatened by the Commission; , (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; , (v) if delivered on a Representation Date that is not also a Settlement Date, as of such date and as of each Representation Date, or if delivered on a Settlement Date, at the Time of Sale, if any, subsequent Sale applicable relating to the immediately preceding Representation DateShares, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and , (vi) if delivered on a Representation Date that is not also a Settlement Date, as of such date and as of each Representation Date, or if delivered on a Settlement Date, at the Time of Sale, if any, subsequent Sale relating to the immediately preceding Representation applicable Shares and at the Settlement Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package, and (vii) the Shares to be sold on that date, if any, have been duly and validly authorized by the Company and that all corporate action required to be taken for the authorization, issuance and sale of the Shares on that date, if any, has been validly and sufficiently taken. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received (x) on each date specified Representation Date (other than on any Representation Date referred to in Section 6(m), and on such other dates as may be reasonably requested by the Managers, (y) below) an opinion of XxxxxxSquire, Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLPXxxxxxx L.L.P., outside counsel for the Company, and (y) on each Representation Date arising in connection with the filing from time to time of the Company’s Quarterly Reports on Form 10-Q with the Commission an opinion of Xxxxxx X. Xxxxxxx, Esq., Senior Vice President and Deputy General Counsel of the Company, in each case (x) and (y) dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of CaliforniaOhio, with the corporate power and authority (corporate and other) to own or leaseown, as the case may be, lease and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws each of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(ivii) the Shares conform in all material respects to the descriptions thereof contained in each of the Registration Statement, the Prospectus and the General Disclosure Package;
(iii) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(viv) this Agreement has been duly authorized, executed and delivered by the Company;
(viv) none of the issue or sale of execution and delivery by the SharesCompany of, the consummation of the transactions contemplated by this Agreement or and the performance by the Company of its obligations hereunder under, this Agreement, the issuance of the Shares, the compliance by the Company with all of the provisions of this Agreement, and the consummation of the transactions contemplated herein, will (A) conflict with not result in any violation of the provisions of the articles of incorporation or code of regulations of the Company or the charter or by-laws of any of its subsidiaries, or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any order, rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to of any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties subsidiaries or their properties;
(“Applicable Governmental Authority”vi) no consent, approval, authorization, order, registration or (B) result in a breach qualification of or violation of, with any such court or constitute a default under, any agreement, indenture governmental agency or other instrument to which body is required for the Company issue and sale of the Shares or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed consummation by the Company between the end of the most recent quarterly period for which a 10-K transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such consents, approvals, authorizations, registrations or 10-Q has been filed by qualifications as may be required under state securities or Blue Sky laws in connection with the Company purchase and distribution of the date of such opinionShares;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Capital Stock” and “Plan of DistributionCertain ERISA Considerations” and (B) the Registration Statement in Item 15Prospectus under the caption “Plan of Distribution”, in each case fairly summarize such provisions in all material respectsrespects such matters, documents or proceedings;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not andnot, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be be, required to register as an “investment company” as such term is defined in the 1940 Investment Company Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.1940, as amended; and
(xiA) The Registration Statement has become effective under in the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date opinion of such opinion counsel (other than 1) each Incorporated Document (except for the financial statements, statements and financial schedules and other financial and statistical data contained or incorporated by reference included therein, as to which such counsel need not express no any opinion) comply appeared on its face to be appropriately responsive as to form of its filing date in all material respects with to the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder, and (2) the Registration Statement and the Prospectus (except for the financial statements and financial schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the Exchange Act applicable rules and regulations of the respective rules promulgated Commission thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within (B) nothing has come to the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from attention of such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, causes such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) any part of the Registration Statement, when such part became effective (except for the financial statements and financial schedules and other financial and statistical data included therein as to which such counsel need not express any belief), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Registration Statement or the Prospectus (except for the financial statements and financial schedules and other financial and statistical data included therein as to which such counsel need not express any belief), on the date of this Agreement and at the each Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure PackagePackage (except for the financial statements and financial schedules and other financial and statistical data included therein, as to which such counsel need not express any belief) as of its date, or as amended or supplemented, if applicable, as of the date of this Agreement and as of each such Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to misleading or (4) the Prospectus (except for the financial statements, statements and financial schedules and other financial and statistical data contained included therein, as to which such counsel need not express any belief), as amended or supplemented, if applicable, as of such Representation Date, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(d) The Manager shall have received on each Representation Date an opinion of Squire, Xxxxxxx & Xxxxxxx L.L.P., tax counsel for the Company, dated such date, to the effect that such firm confirms that the statements set forth in the Prospectus under the caption “Certain U.S. Income Tax Consequences to Non-U.S. Holders of Common Shares”, insofar as they purport to constitute a summary of matters of U.S. federal income tax law, constitute an accurate summary of the matters set forth in all material respects.
(e) The Manager shall have received on each Representation Date an opinion of Xxxxxx X. Xxxxxxx, Esq., Senior Vice President and Deputy General Counsel of the Company, dated such date, to the effect that:
(i) the Common Shares outstanding prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and non-assessable;
(ii) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the issuance of the Shares, the compliance by the Company with all of the provisions of this Agreement, and the consummation of the transactions contemplated herein, will not conflict with or incorporated result in a breach or violation of any terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject; and
(iii) there is no pending or, to the knowledge of such counsel, threatened action, suit or proceeding by reference or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property, of a character required to be disclosed in the Registration Statement, the General Disclosure Package Statement or the Prospectus which is not adequately disclosed, and there is no statute, regulation, franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus. References , or to the Prospectus in this paragraph be filed as an exhibit thereto, which is not described or filed as required.
(f) The Manager shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the have received on each Representation Date an opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to Xxxxxxxx & Xxxxxxxx LLP, counsel for the Managers Manager, dated such date, in form and (B) as to matters of fact, substance reasonably satisfactory to the extent they deem proper, on certificates of responsible officers of the Company and public officialsManager. The opinion opinions of counsel for the Company described in this Section 5(c) and Section 5(d) above shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(dg) The Managers Manager shall have received received, upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder) and each time that (i) the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information, (ii) any Shares are delivered to the Manager as principal on each date specified in Section 6(na Settlement Date, at the Manager’s oral or written request and upon reasonable advance oral or written notice to the Company, (iii) the Company shall file an annual report on Form 10-K or quarterly report on Form 10-Q, and or (iv) there is filed with the Commission any document (other than an annual report on Form 10-K or quarterly report on Form 10-Q) incorporated by reference into the Prospectus which contains additional amended financial information or (v) on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the ManagersManager, a letter dated such date in form and substance satisfactory to the ManagersManager, from Deloitte Ernst & Touche Young LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gi) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hj) The Common Stock Shares shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its wholly-owned subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(iiiii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) ), and on such other dates as may be reasonably requested by the Manager, a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section Sections 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the ManagersManager, an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx Xxxx & Xxxxxxxxx Xxxxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officialsManager. The opinion of counsel for the Company described in this Section 5(c) above shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(d) The Managers Manager shall have received on each date specified in Section 6(n) ), and on such other dates as may be reasonably requested by the ManagersManager, an opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, counsel for the ManagersManager, dated such date, in form and substance reasonably satisfactory to the ManagersManager.
(e) The Managers Manager shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the ManagersManager, a letter dated such date in form and substance reasonably satisfactory to the ManagersManager, from Deloitte Ernst & Touche Young LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) The Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Manager, a written opinion from the Associate General Counsel – Securities & Governance of the Company, in form and substance reasonably satisfactory to the Manager.
(g) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (Arthur J. Gallagher & Co.)
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries or in the rating outlook for the Company by any “nationally recognized statistical rating organization”, ,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and that set forth in the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares ADSs on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) Representation Date, and on such other dates as may be reasonably requested by the Manager, a certificate, dated such date Representation Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such dateRepresentation Date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such dateRepresentation Date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) if delivered on a Representation Date that is not also a Settlement Date, as of such date and as of each Representation Date, or if delivered on a Settlement Date, at the Time of Sale, if any, subsequent Sale applicable relating to the immediately preceding Representation ADSs and at the Settlement Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) if delivered on a Representation Date that is not also a Settlement Date, as of such date and as of each Representation Date, or if delivered on a Settlement Date, at the Time of Sale, if any, subsequent Sale relating to the immediately preceding Representation applicable ADSs and at the Settlement Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing ; and delivering (vii) the Ordinary Shares to be represented by the ADSs to be sold under this Agreement have been duly and validly authorized by the Company and delivered to and deposited with the depositary, such certificate may rely upon ADSs have been duly and validly authorized by the best Company, and that all corporate actions required to be taken for the authorization, issuance and delivery of his or her knowledge as to proceedings threatenedthe Ordinary Shares and offer, sale and delivery of the ADSs on that date, if any, has been validly and sufficiently taken.
(c) The Managers Manager shall have received on each date specified in Section 6(m)Representation Date, and on such other dates as may be reasonably requested by the ManagersManager, an opinion of Xxxxxx, Xxxxxxxxxx Shearman & Xxxxxxxxx Sterling LLP, outside U.S. counsel for the Company, dated such datedate and addressed to the Manager, in form and substance satisfactory to the Manager, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation set forth in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon Exhibit B hereto and subject to the foregoingusual and customary qualifications, such counsel will advise the Managers, as a matter of fact limitations and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state thereinassumptions.
(d) The Managers Manager shall have received on each date specified in Section 6(n) Representation Date, and on such other dates as may be reasonably requested by the ManagersManager, an opinion of SkaddenGrandall Legal Group (Shanghai), Arps, Slate, Xxxxxxx & Xxxx LLP, PRC counsel for the ManagersCompany, dated such datedate and addressed to the Manager, in form and substance reasonably satisfactory to the ManagersManager, to the effect set fort in Exhibit C hereto and subject to usual and customary qualifications, limitations and assumptions.
(e) The Managers Manager shall have received on each date specified in Section 6(o)Representation Date, and on such other dates as may be reasonably requested by the ManagersManager, an opinion of Maple and Calder, Cayman Islands and British Virgin Islands counsel for the Company, dated such date and addressed to the Manager, in form and substance satisfactory to the Manager, to the effect set forth in Exhibit D hereto and subject to usual and customary qualifications, limitations and assumptions.
(f) The Manager shall have received on each Representation Date, and on such other dates as may be reasonably requested by the Manager, an opinion of Xxxxx Xxxxxx & Xxxxxx, counsel for the Depositary, dated such date and addressed to the Manager, in form and substance satisfactory to the Manager, to the effect set forth in Exhibit E hereto and subject to usual and customary qualifications, limitations and assumptions.
(g) The Manager shall have received on each Representation Date, and on such other dates as may be reasonably requested by the Manager, an opinion of Xxxxx Xxxx & Xxxxxxxx LLP, U.S. counsel for the Manager, dated such date and addressed to the Manager, in form and substance satisfactory to the Manager, with respect to the issuance and sale of the ADSs, the Registration Statement, the General Disclosure Package and other related matters as the Manager may reasonably require. The opinions of counsel for the Company described in Sections 5(c) through 5((f)) above shall be rendered to the Manager at the request of the Company and shall so state therein. In addition, in lieu of delivering such opinions for Representation Dates subsequent to the commencement of the offering of the ADSs under this Agreement, such counsel may furnish the Manager with a letter (a “Reliance Letter”) to the effect that the Manager may rely on a prior opinion delivered under Sections 5(c) through 5(f) above, as the case may be, to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of such Representation Date).
(h) The Manager shall have received, upon commencement of the offering of the ADSs under this Agreement (and upon the recommencement of the offering of the ADSs under this Agreement following the termination of a suspension of sales hereunder) and each time that (i) the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information, (ii) any ADSs are delivered to the Manager as principal on a Settlement Date, at the Manager’s oral or written request and upon reasonable advance oral or written notice to the Company, (iii) the Company shall file an annual report on Form 20-F or furnish a quarterly report on Form 6-K, (iv) there is filed with the Commission any document (other than an annual report on Form 20-F or quarterly report on Form 6-K) incorporated by reference into the Prospectus which contains additional amended financial information or (v) on such other dates as may be reasonably requested by the Manager, a letter dated such date in form and substance satisfactory to the ManagersManager, from Deloitte Ernst & Touche LLPXxxx Xxx Ming, independent public accountants for the Company, Company (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight BoardBoard (United States), (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fi) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(g) . The Shares shall have been approved documents required to be delivered by this Section 5 will be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for listing the Manager, at 18th Floor, The Hong Kong Club Building, 3A Chater Road, Hong Kong, on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Commencement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (Solarfun Power Holdings Co., Ltd.)
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which is, in the judgment of the Managers, so material and adverse as to make it impractical or inadvisable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l5(l) a certificatecertificate of the Company, dated such date and signed signed, in the case of the Company, by an executive officer the Chairman, any Vice Chairman, the President, any Vice President, the Chief Financial Officer, the Chief Accounting Officer, the General Counsel, the Controller or any Deputy Controller and by the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company, to the effect set forth in Section 5(a)(i) that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package and (ii) above this Agreement or any Terms Agreement and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct on and as of such date; (ii) date with the same effect as if made on such date and the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on at or before prior to such date; (iiiii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceeding proceedings for that purpose has have been initiated instituted or, to their knowledge, threatened; (iii) since the knowledge date of the Companymost recent financial statements included or incorporated by reference in the Prospectus, threatened by there has been no material adverse effect on the Commissioncondition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Prospectus; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (viv) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(cb) The Managers Manager shall have received on each date specified in Section 6(m5(m), and on such other dates as may be reasonably requested by the Managers, an opinion of XxxxxxXxxxxxx X. Xxxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for Associate General Counsel—Capital Markets of the Company, dated such date, date and addressed to the effect that:
(i) Manager, with respect to the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws sale of the State of CaliforniaShares, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the Prospectus, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, other related matters as the case Manager may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Actreasonably require.
(xic) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers Manager shall have received on each date specified in Section 6(n) 5(n), and on such other dates as may be reasonably requested by the Managers, an opinion or opinions of Skadden, Arps, Slate, Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, counsel for the ManagersManager, dated such date, in form date and substance reasonably satisfactory addressed to the ManagersManager, with respect to the sale of the Shares, the Registration Statement, the Prospectus, the General Disclosure Package and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Managers Company shall have received requested and caused KPMG LLP to have furnished to the Manager, on each date specified in Section 6(o5(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the Managers, from Deloitte & Touche LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ customary “comfort letters” dated such date that are satisfactory in content and form to underwriters the Manager.
(e) Within 24 hours after the beginning of each period specified in connection with registered public offerings (the first such letterSection 5(p), the “Initial Comfort Letter”) and (C) updating Manager shall have received a certificate signed by the Initial Comfort Letter with any information Chief Financial Officer of the Company using a form substantially similar to that would have been included in the Initial Comfort Letter had it been given on such date and modified attached hereto as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.Exhibit B.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)); any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(g) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
(h) If, between the Time of Sale of any Shares and the corresponding settlement of the sale of such Shares on the scheduled Settlement Date, the Company would be unable to deliver the certificate contemplated by Section 4(a), then the Manager may cause the Selling Stockholder to cancel the sale by the Selling Stockholder to any purchaser thereof or the purchase by the Manager as principal of all or a portion of such Shares, and each of the Manager and the Selling Stockholder shall be released from any of its obligations under Section 3 with respect to such Shares. The Company shall hold the Manager and the Selling Stockholder harmless against any loss, claim, damage or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with the cancellation of any sale pursuant to this Section 4(h).
(i) Prior to any Settlement Date, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, ,” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(iiiii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesthe Subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (iiSection 5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package, it being understood that the only such information furnished by the Manager consists of the Manager Information. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received received, on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the ManagersManager, an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLPXxxxx Xxxxx L.L.P., outside counsel for the Company, dated such date, substantially to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation set forth in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state thereinExhibit B hereto.
(d) The Managers Manager shall have received received, on each date specified in Section 6(n) ), and on such other dates as may be reasonably requested by the ManagersManager, an opinion of SkaddenXxxxxxxxx XX, Arps, Slate, Xxxxxxx & Xxxx LLP, Swiss counsel for the ManagersCompany, dated such date, in form and substance reasonably satisfactory substantially to the Managerseffect set forth in Exhibit C hereto.
(e) The Managers Manager shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the ManagersManager, an opinion and a negative assurance letter of Xxxxxx & Xxxxxx, L.L.P., counsel for the Manager, dated such date, in form and substance reasonably satisfactory to the Manager. The opinion of counsel for the Company described in Section 5(c) and Section 5(d) above shall be rendered to the Manager at the request of the Company and shall so state therein.
(f) The Manager shall have received on each date specified in Section 6(p), a letter dated such date in form and substance reasonably satisfactory to the ManagersManager, from Deloitte Ernst & Touche Young LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter..
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock Public Shares shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
(j) The Shares, when delivered and paid for in accordance with the terms of this Agreement, shall have been duly and validly authorized and issued and, to the extent required under applicable Swiss law, registered with the Commercial Register of the Canton of Zug.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of Manager hereunder with respect to any order submitted by the Managers Company to such Manager to sell Shares are subject to the following conditions:
(a) Since the later of (Ai) the date of this Agreement and (Bii) the immediately preceding Representation Date:
: (iA) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
and (iiB) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the Managerssuch Manager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in such Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii5(a)(ii)(A) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, ) an opinion of Xxxxxx, Xxxxxxxxxx Xxxxxx & Xxxxxxxxx LLPXxxxxx L.L.P., outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 ActManagers.
(xid) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness Managers shall have received on each date specified in Section 6(n) an opinion of the Registration Statement has been issued andXxxxxx & Xxxxxxx LLP, to such counsel’s knowledge, no proceedings counsel for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to dated such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements thereindate, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement form and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect substance reasonably satisfactory to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officialsManagers. The opinion of counsel for the Company described in this Section 5(c) above shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the Managers, from Deloitte & Touche KPMG LLP, independent registered public accountants for the Company, (Ai) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (Bii) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (Ciii) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) The Managers shall have received on each date specified in Section 6(o), a letter dated such date in form and substance satisfactory to the Managers, from Xxxxx Xxxxx Company, L.P., independent reserve engineer for the Company, (i) confirming that, as of the date of its most recent reserve report for the Company, it was an independent reserve engineer for the Company and (ii) as of the date of such letter, no information had come to its attention that could reasonably have been expected to cause it to withdraw its audit letter.
(g) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (California Resources Corp)
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus Statement and the General Disclosure Package, the effect of which isPackage that, in the judgment of the Managers’ judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Managers’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, ) (i) an opinion and (ii) a negative assurance letter of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLPProfessional Corporation, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx Xxxxxxxx & Xxxx Xxxxxxxx LLP, outside intellectual property counsel for the ManagersCompany, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o)) (i) an opinion and (ii) a negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, and on such other dates as may be reasonably requested by counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers. The opinion and negative assurance letter of counsel of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation described in Section 5(c) and the opinion of Xxxxxxxx & Xxxxxxxx LLP described in Section 5(d) above shall be rendered to the Managers at the request of the Company and shall so state therein.
(f) The Managers shall have received on each date specified in Section 6(p), a letter dated such date in form and substance satisfactory to the Managers, from Deloitte Ernst & Touche Young LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
and (ii) there shall not have occurred occurred, in the Manager’s sole judgment, any change in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as development reasonably likely to become a whole, Material Adverse Effect from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s sole judgment, so material and adverse as to makes it or would make it impractical or inadvisable impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceeding proceedings for that purpose has or pursuant to Section 8A of the Securities Act have been initiated instituted or are pending or, to the knowledge of the Company, threatened are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, ) an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx Dxxxx Xxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated Manager, which opinion and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The negative assurance letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(d) The Managers Manager shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx Faegre Drinker Bxxxxx & Xxxx Rxxxx LLP, counsel for the ManagersManager, dated such date, in form and substance reasonably satisfactory to the ManagersManager.
(e) The Managers Manager shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter letters dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLPCompany Auditor, current independent registered public accountants accountant for the Company, (A) confirming that they are as of the date of its respective audit report(s), it was an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letterletters from Company Auditor, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(g) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) , there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”development involving a prospective change, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesthe Subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the Managers’ judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Managers’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers or, in the case of a Principal Settlement (as defined below), the applicable Managers shall have received on each date specified in Section 6(l6(m) a certificate, dated such date and signed by an executive officer of the CompanyCompany and the Operating Partnership, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that that: (i) the representations and warranties of the Company and the Operating Partnership contained in this Agreement are true and correct as of such date; (ii) each of the Company and the Operating Partnership has complied with all of the its agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the CompanyCompany or the Operating Partnership, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall not apply to any statement statements or omission omissions made in reliance upon and in conformity with information the Manager Information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers or, in the case of a Principal Settlement, the applicable Managers shall have received on each date specified in Section 6(m6(n), and on such other dates as may be reasonably requested by the Managers or, in the case of a Principal Settlement, the applicable Managers, an opinion of Xxxxxx, Xxxxxxxxxx Xxxxxx & Xxxxxxxxx Xxxxxxx LLP, outside counsel for the Company, dated such date, with respect to the effect that:
(i) matters identified in Exhibit B hereto. The opinion of Xxxxxx & Xxxxxxx LLP described in Exhibit B shall be rendered to the Company has been duly incorporated and is validly existing as a corporation Managers or, in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statementof a Principal Settlement, the General Disclosure Package and applicable Managers at the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock request of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of shall so state therein. In giving such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinionopinions, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consentrely, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and certificates of public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such dateor, in form and substance reasonably satisfactory to the Managers.
(e) The case of a Principal Settlement, the applicable Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers or, in the case of a Principal Settlement, the applicable Managers, an opinion of Hunton & Xxxxxxxx LLP, outside tax counsel for the Company, dated such date, with respect to the matters identified in Exhibit C hereto. The opinion of Hunton & Xxxxxxxx LLP described in Exhibit C shall be rendered to the Managers or, in the case of a Principal Settlement, the applicable Managers at the request of the Company and shall so state therein. In giving such opinions, such counsel may rely, as to matters of fact, to the extent they deem proper, on certificates of officers of the Company and certificates of public officials.
(e) The Managers or, in the case of a Principal Settlement, the applicable Managers shall have received on each date specified in Section 6(p), and on such other dates as may be reasonably requested by the Managers or, in the case of a Principal Settlement, the applicable Managers, an opinion of Xxxxxxx LLP, Maryland counsel to the Company, dated such date, with respect to the matters identified in Exhibit D hereto. The opinion of Xxxxxxx LLP described in Exhibit D shall be rendered to the Managers or, in the case of a Principal Settlement, the applicable Managers at the request of the Company and shall so state therein.
(f) The Managers or, in the case of a Principal Settlement, the applicable Managers shall have received on each date specified in Section 6(q), and on such other dates as may be reasonably requested by the Managers or, in the case of a Principal Settlement, the applicable Managers, an opinion of Sidley Austin LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers or, in the case of a Principal Settlement, the applicable Managers. In giving such opinion such counsel may rely, as to all matters governed by Maryland law, upon the opinion of Xxxxxxx LLP referred to in Section 5(e). In giving such opinions, such counsel may rely, as to matters of fact, to the extent it deems proper, on certificates of officers of the Company and certificates of public officials.
(g) The Managers or, in the case of a Principal Settlement, the applicable Managers shall have received on each date specified in Section 6(r), a letter dated such date in form and substance satisfactory to the Managers or, in the case of a Principal Settlement, the applicable Managers, from Deloitte & Touche KPMG LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date in connection with any offer or sale of Shares shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gi) The Shares shall have been approved for listing on the ExchangeNYSE, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hj) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (Xenia Hotels & Resorts, Inc.)
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
and (ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, ) an opinion of Xxxxxx, Xxxxxxxxxx Xxxxxx & Xxxxxxxxx LLPXxxxxx L.L.P., outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 ActManager.
(xid) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose Manager shall have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the received on each date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the Section 6(n) an opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to Xxxxxx & Xxxxxxx LLP, counsel for the Managers Manager, dated such date, in form and (B) as to matters of fact, substance reasonably satisfactory to the extent they deem proper, on certificates of responsible officers of the Company and public officialsManager. The opinion of counsel for the Company described in this Section 5(c) above shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers Manager shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche KPMG LLP, independent registered public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) The Manager shall have received on each date specified in Section 6(o), a letter dated such date in form and substance satisfactory to the Manager, from Xxxxx Xxxxx, independent reserve engineer for the Company, (A) confirming that, as of the date of its reserve report as of December 31, 2016, it was an independent reserve engineer for the Company and (B) as of the date of such letter, no information had come to its attention that could reasonably have been expected to cause it to withdraw its audit letter.
(g) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (California Resources Corp)
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “"nationally recognized statistical rating organization”", as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager's judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager's judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the ManagersManager, an opinion of Xxxxxx, Xxxxxxxxxx (A) Sxxxxx & Xxxxxxxxx Kxxxxx LLP, outside counsel for the Company, (B) Sxxxxx & Kxxxxx LLP, outside Liberia counsel for the Company, and (C) MJM Limited, outside Bermuda counsel for the Company, as applicable, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation set forth in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officialsSchedule V hereto. The opinion of counsel for the Company described in this Section 5(c) above shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(d) The Managers Manager shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the ManagersManager, an opinion of Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel for the Manager, dated such date, in form and substance reasonably satisfactory to the Manager.
(e) The Manager shall have received on each date specified in Section 6(o), a letter dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLPPricewaterhouseCoopers AS, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “"Initial Comfort Letter”") and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) On each date specified in Section 6(p), and only to the extent required by the terms of Section 6(p), the Manager shall have received a letter dated such date in form and substance satisfactory to the Manager, from the Chief Financial Officer of the Company, stating, as of such date, the conclusions and findings of such individual, in her capacity as Chief Financial Officer of the Company, with respect to certain current financial information requested by the Manager.
(g) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in the rating accorded any of the securities of the Company and no proceeding for such purpose or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) pursuant to Section 8A under the Securities ActAct shall be pending before or threatened by the Commission; and
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the Manager’s judgment of in consultation with the ManagersCompany, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section Sections 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the ManagersManager, an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxxx Xxxxxxxx LLP, outside counsel for the Company, in form and substance satisfactory to the Manager.
(d) The Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Manager, an opinion of NautaDutilh, Dutch counsel for the Company, in form and substance satisfactory to the Manager.
(e) The Manager shall have received on each date specified in Section 6(n), and on such other dates as may be reasonably requested by the Manager, an opinion and negative assurance letter of Xxxxxxx Procter LLP, counsel for the Manager, dated such date, in form and substance satisfactory to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officialsManager. The opinion opinions of counsel for the Company described in this Section 5(c) and Section 5(d) above shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(df) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers Manager shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the ManagersManager, from Deloitte Ernst & Touche LLPYoung GmbH Wirtschaftsprüfungsgesellschaft, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fg) The Manager shall have received on the date of this Agreement and on each date specified in Section 6(o), a Chief Financial Officer certificate in form and substance satisfactory to the Manager, from the Chief Financial Officer of the Company with respect to certain financial data contained in the General Disclosure Package and the Prospectus, providing “management comfort” with respect to such information.
(h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gi) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hj) The Common Stock Class A Shares shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
and (ii) there shall not have occurred any change occurred, in the conditionManager’s sole judgement, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, any Material Adverse Effect from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that makes it, in the judgment of the ManagersManager’s sole judgment, so material and adverse as to make it impractical or inadvisable impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceeding proceedings for that purpose has or pursuant to Section 8A of the Securities Act have been initiated instituted or are pending or, to the knowledge of the Company, threatened are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m) a certificate of the Secretary of the Company, dated such date, as described in Section 6(m), and .
(d) The Manager shall have received on such other dates as may be reasonably requested by the Managers, each date specified in Section 6(n) an opinion and negative assurance letter of XxxxxxXxxxxxxxx Xxxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated Manager, which opinion and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The negative assurance letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(de) The Managers Manager shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of SkaddenAllen, ArpsDyer, SlateDoppelt, Xxxxxxx & Xxxx LLPXxxxxxxxx, P.A., outside intellectual property counsel for the ManagersCompany, dated such date, in form and substance reasonably satisfactory to the ManagersManager, which opinion and negative assurance letter shall be rendered to the Manager at the request of the Company and shall so state therein.
(ef) The Managers Manager shall have received on each date specified in Section 6(o) an opinion and negative assurance letter of Faegre Drinker Xxxxxx & Xxxxx LLP, counsel for the Manager, dated such date, in form and substance reasonably satisfactory to the Manager.
(g) The Manager shall have received on each date specified in Section 6(p), and on such other dates as may be reasonably requested by the Managers, a letter letters dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLPCompany Auditor, current independent registered public accountants accountant for the Company, (A) confirming that they are as of the date of its respective audit report(s), it was an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letterletters from Company Auditor, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gi) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hj) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there no downgrading shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of debt securities or preferred stock issued or guaranteed by the securities of Company, the Company Operating Partnership or any of its their respective subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2under Section 3(a)(62) under the Securities Exchange Act, 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 debt securities or preferred stock issued or guaranteed by the Company, the Operating Partnership or any of their respective subsidiaries (other than an announcement with positive implications of a possible upgrading); and
(ii) there no event or condition of a type described in Section 1(g) hereof shall not have occurred any change or shall exist, which event or condition is not described in the condition, financial or otherwise, or in the earnings, business or operations each of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, Package (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) the effect of which is, in the judgment of the Managers, so material and adverse as to make any Manager makes it impractical impracticable or inadvisable to market proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in by this Agreement, the General Disclosure Package and the Prospectus.
(b) The Managers shall have received on each date specified in Section 6(l) Representation Date a certificate, dated such date and signed by an executive officer of the CompanyCompany and the Operating Partnership, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company and the Operating Partnership contained in this Agreement are true and correct as of such date (except to the extent that such representations and warranties speak as of another date, in which case such representations and warranties shall be true and correct as of such other date); (ii) the Company has and the Operating Partnership have complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the Registration Statement or the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the ManagersRepresentation Date, an opinion of Xxxxxx, Xxxxxxxxxx King & Xxxxxxxxx Spalding LLP, outside counsel for the CompanyCompany and the Operating Partnership, dated such date, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Exhibit B hereto.
(d) The Managers shall have received on each Representation Date, an opinion of King & Spalding LLP, tax counsel for the Company and the Operating Partnership, dated such date, to the effect that:
(i) , with respect to such tax matters, including, without limitation, the qualification of the Company has been duly incorporated and is validly existing as a real estate investment trust, the classification of the Operating Partnership as neither a corporation nor an association taxable as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package for U.S. federal income tax purposes and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation discussion of tax matters in good standing under the laws each of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of Managers may reasonably require.
(e) The Managers shall have received on each Representation Date, contained or contains any untrue statement an opinion of a material fact or omitted or omits to state a material fact necessary in order to make Xxxxxxx LLP, Maryland counsel for the statements thereinCompany and the Operating Partnership, dated such date, in form and substance reasonably satisfactory to the light Representatives, to the effect set forth in Exhibit C hereto.
(f) The Managers shall have received on each Representation Date, an opinion and 10b-5 statement, addressed to the Managers, of Xxxxx Lovells US LLP, counsel for the circumstances under which they were madeManagers, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to such matters as the financial statementsManagers may reasonably request, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel shall have received such documents and information as they may rely (A) as reasonably request to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, enable them to the extent they deem proper and specified in pass upon such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officialsmatters. The opinion opinions of counsel for the Company and the Operating Partnership described in this Section 5(c), (d) and (e) above shall be rendered to the Managers at the request of the Company and shall so state therein.
(dg) The Managers On each Representation Date, Ernst & Young LLP shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by furnished to the Managers, an opinion at the request of Skaddenthe Transaction Entities, Arpsletters, Slate, Xxxxxxx & Xxxx LLP, counsel for dated the respective dates of delivery thereof and addressed to the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), containing statements and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the Managers, from Deloitte & Touche LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning information of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in connection with registered public offerings each of the Registration Statement, the General Disclosure Package and the Prospectus; provided that the letter delivered on each such date shall use a “cut-off” date no more than three business days prior to the date of delivery of such letter (the first such letter, the “Initial Comfort Letter”) and (CA) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gi) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance issuance, at or prior to the applicable Settlement Date.
(hj) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (Piedmont Office Realty Trust, Inc.)
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(iiiii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the Managers’ judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Managers’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section Sections 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, ) (i) an opinion and negative assurance letter of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLPProfessional Corporation, outside counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated in form and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are substance reasonably satisfactory to counsel for the Managers and (Bii) as to matters of facta regulatory opinion from the Company, dated such date, in form and substance reasonably satisfactory to the extent they deem properManagers.
(d) The Managers shall have received on each date specified in Section 6(n) an opinion and negative assurance letter of Shearman & Sterling LLP, on certificates of responsible officers of counsel for the Company Managers, dated such date, in form and public officialssubstance reasonably satisfactory to the Managers. The opinion of counsel for the Company described in this Section 5(c) above shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance reasonably satisfactory to the Managers, from Deloitte Ernst & Touche Young LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) The Managers shall have received on each date specified in Section 6(p) a certificate of the Company’s chief financial officer with respect to certain financial and operational data contained in the General Disclosure Package and the Prospectus, dated such date, in form and substance reasonably satisfactory to the Managers.
(g) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (Hawaiian Holdings Inc)
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager under this Agreement are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in the rating accorded any of the securities of the Company and no proceeding for such purpose or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) pursuant to Section 8A under the Securities ActAct shall be pending before or threatened by the Commission; and
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, Statement and the Prospectus and the General Disclosure Package, the effect of which isthat, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l6(m) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section Sections 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, Supplement and any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package Prospectus did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure PackageProspectus. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m)received, and on such other dates as may be reasonably requested by the Managers, an opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) a certificate of the Company’s chief financial officer with respect to certain financial data contained in the Registration Statement, and on providing “management comfort” with respect to such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such dateinformation, in form and substance reasonably satisfactory to the ManagersManger and its counsel.
(ed) The Managers Manager shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the ManagersManager, a an opinion and negative assurance letter of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the Manager.
(e) The Manager shall have received on each date specified in Section 6(p), and on such other dates as may be reasonably requested by the Manager, an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Manager, dated such date, with respect to such matters as the Manager may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters. The opinion of counsel for the Company described in Section 5(d) above shall be rendered to the Manager at the request of the Company and shall so state therein.
(f) The Manager shall have received on each date specified in Section 6(q), one or more letters dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLP, independent public accountants for the CompanyCompany and any other applicable accounting firm reasonably requested by the Manager, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, as applicable, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, Supplement or the Prospectus or any issuer free writing prospectusProspectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares to be sold shall have been approved for listing on the ExchangeNasdaq, subject only to a official notice of issuance at or prior to the applicable Settlement Dateissuance.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its wholly-owned subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(iiiii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) ), and on such other dates as may be reasonably requested by the Manager, a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section Sections 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the ManagersManager, an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx Xxxx & Xxxxxxxxx Xxxxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officialsManager. The opinion of counsel for the Company described in this Section 5(c) above shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(d) The Managers Manager shall have received on each date specified in Section 6(n) ), and on such other dates as may be reasonably requested by the ManagersManager, an opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, counsel for the ManagersManager, dated such date, in form and substance reasonably satisfactory to the ManagersManager.
(e) The Managers Manager shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the ManagersManager, a letter dated such date in form and substance reasonably satisfactory to the ManagersManager, from Deloitte Ernst & Touche Young LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) The Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Manager, a written opinion from the Associate General Counsel – Securities & Governance of the Company, in form and substance reasonably satisfactory to the Manager.
(g) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
(j) The Manager shall have received a letter from Xxxxx & Young LLP, independent public accountants for the Company, dated the date hereof and in substance reasonably satisfactory to the Manager, permitting the Manager to rely on the comfort letter dated February 12, 2024 addressed to the Company and the Manager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Arthur J. Gallagher & Co.)
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that would reasonably be expected to have a Material Adverse Effect and, in the judgment of the Managers’ judgment, so material and adverse as to make makes it impractical or inadvisable impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement or omission made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, an opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item Section 601(b)(4) or Item Section 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of date that the most recent quarterly period for which a 10-K or most recent 10-Q has been filed by the Company was filed, whichever is most recent, and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the Managers, from Deloitte & Touche LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(g) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries the Subsidiaries by any “nationally recognized statistical rating organization”, ,” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesthe Subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the Managers’ judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Managers’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers or, in the case of a Principal Settlement (as defined below), the applicable Managers shall have received on each date specified in Section 6(l6(m) a certificate, dated such date and signed by an executive officer of the CompanyCompany and the Operating Partnership, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that that: (i) the representations and warranties of the Company and the Operating Partnership contained in this Agreement are true and correct as of such date; (ii) each of the Company and the Operating Partnership has complied with all of the its agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the CompanyCompany or the Operating Partnership, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall not apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers or, in the case of a Principal Settlement, the applicable Managers shall have received on each date specified in Section 6(m6(n), and on such other dates as may be reasonably requested by the Managers or, in the case of a Principal Settlement, the applicable Managers, an opinion of Xxxxxx, Xxxxxxxxxx Xxxxxx & Xxxxxxxxx Xxxxxxx LLP, outside counsel for the Company, dated such date, with respect to the effect that:
(i) matters identified in Exhibits B-1 and B-2 hereto. The opinions of Xxxxxx & Xxxxxxx LLP described in Exhibits B-1 and B-2 shall be rendered to the Company has been duly incorporated and is validly existing as a corporation Managers or, in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statementof a Principal Settlement, the General Disclosure Package and applicable Managers at the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock request of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of shall so state therein. In giving such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinionopinions, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consentrely, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and certificates of public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such dateor, in form and substance reasonably satisfactory to the Managers.
(e) The case of a Principal Settlement, the applicable Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers or, in the case of a Principal Settlement, the applicable Managers, an opinion of Xxxxxxx Xxxxx LLP, Maryland counsel to the Company, dated such date, with respect to the matters identified in Exhibit C hereto. The opinion of Xxxxxxx Xxxxx LLP described in Exhibit C shall be rendered to the Managers or, in the case of a Principal Settlement, the applicable Managers at the request of the Company and shall so state therein.
(e) The Managers or, in the case of a Principal Settlement, the applicable Managers shall have received on each date specified in Section 6(p), and on such other dates as may be reasonably requested by the Managers or, in the case of a Principal Settlement, the applicable Managers, an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., Delaware counsel to the Operating Partnership, dated such date, with respect to the matters identified in Exhibit D hereto. The opinion of Xxxxxxxx, Xxxxxx & Finger, P.A. described in Exhibit D shall be rendered to the Managers or, in the case of a Principal Settlement, the applicable Managers at the request of the Company and shall so state therein.
(f) The Managers or, in the case of a Principal Settlement, the applicable Managers shall have received on each date specified in Section 6(q), and on such other dates as may be reasonably requested by the Managers or, in the case of a Principal Settlement, the applicable Managers, an opinion of Sidley Austin LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers or, in the case of a Principal Settlement, the applicable Managers. In giving such opinion such counsel may rely, as to all matters governed by Maryland law, upon the opinion of Xxxxxxx Xxxxx LLP referred to in Section 5(d) above and, as to all matters governed by Delaware law, upon the opinion of Xxxxxxxx, Xxxxxx & Finger, P.A. referred to in Section 5(e) above. In giving such opinions, such counsel may rely, as to matters of fact, to the extent it deems proper, on certificates of officers of the Company and certificates of public officials.
(g) The Managers or, in the case of a Principal Settlement, the applicable Managers shall have received on each date specified in Section 6(r), a letter dated such date in form and substance satisfactory to the Managers or, in the case of a Principal Settlement, the applicable Managers, from Deloitte Ernst & Touche Young LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date in connection with any offer or sale of Shares shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gi) The Shares shall have been approved for listing on the ExchangeNYSE, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hj) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (Spirit Realty Capital, Inc.)
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and Agreement, (B) the immediately preceding Representation Date:; provided that in the case of clause (ii) below, the date shall be the relevant date enumerated in sub-clause (i) and (ii):
(i) there There shall not have occurred any downgradingbe (and prior to each Time of Sale, nor shall any notice have been given of any intended will be) no debt securities, convertible securities or potential downgrading preferred stock issued or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of guaranteed by the Company or any of its subsidiaries that are rated by any a “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2in Section 3(a)(62) under the Securities Exchange Act; and.
(i) Neither the Company nor any of its subsidiaries since the date of the latest audited financial statements included or incorporated by reference in the Prospectus 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, otherwise than as set forth or contemplated in the Registration Statement, the Prospectus or the General Disclosure Package, and (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus there shall not have occurred been any change in the conditioncapital stock or long-term debt of the Company or any of its subsidiaries or any change or effect, or any development involving a prospective change or effect, in or affecting (x) the business, properties, general affairs, management, financial position, stockholders’ equity or otherwise, or in the earnings, business or results of operations of the Company and its subsidiaries, taken as a whole, from the respective dates of except as set forth or contemplated in the Registration Statement, the Prospectus General Disclosure Package and the Prospectus, or (y) the ability of the Company to perform its obligations under this Agreement, including the issuance and sale of the Shares, or to consummate the transactions contemplated in the Registration Statement, the General Disclosure PackagePackage and the Prospectus, the effect of which iswhich, in the judgment of the Managersany such case described in clause (i) or (ii), is in your judgment, so material and adverse as to make it impractical impracticable or inadvisable to market proceed with the public offering or the delivery of the Shares being delivered at such Time of Sale on the terms and in the manner contemplated in the Registration Statement, the General Disclosure Package and the Prospectus.
(iii) There shall not have occurred (including, on or prior to each Time of Sale) any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on NASDAQ; (ii) a suspension or material limitation in trading in the Company’s securities on NASDAQ; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Sale on the terms and in the manner contemplated in the Registration Statement, the General Disclosure Package and the Prospectus.
(iv) The Company shall have complied with the provisions of this Agreement regarding the furnishing of prospectuses.
(b) The Managers Manager shall have received on each date specified in Section 6(l5(a) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i5(a)(i) and (ii(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement or omission made in reliance upon and in conformity with information any Manager Information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The Manager shall also have received any requested certificate of the Chief Financial Officer of the Company with respect to certain financial data derived from the Company’s financial statements or accounting records providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Manager. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, an opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers Manager shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the ManagersManager (i) a written New York and U.S. federal law opinion and negative assurance letter of Linklaters LLP, outside counsel for the Company, dated such date, substantially in the form set forth in Schedule V-A hereto and (ii) a written Luxembourg law opinion of Linklaters LLP, outside counsel for the Company, dated such date, substantially in the form set forth in Schedule V-B hereto. The opinions of counsel for the Company described in this Section 5(c) shall be rendered to the Manager at the request of the Company and shall so state therein.
(d) The Manager shall have received on each date specified in Section 6(p), and on such other dates as may be reasonably requested by the Manager, an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, counsel for the Manager, dated such date, in form and substance reasonably satisfactory to the Manager.
(e) The Manager shall have received on each date specified in Section 6(q), and on such other dates as may be reasonably requested by the Manager, a letter dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche KPMG LLP, independent public accountants for the Company, (Ai) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (Bii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” or, with respect to quarterly financial information, an agreed upon procedures letter to underwriters in connection with registered public offerings (the first such letter, the “Initial Comfort Letter”) and (Ciii) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus Prospectus, the General Disclosure Package or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(g) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock Ordinary Shares shall be an “actively-traded security” excepted exempted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1c)(l) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice public announcement have been given made of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the Managers’ judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Managers’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers and the Forward Purchasers shall have received on each date specified Representation Date (as defined in Section 6(l6(k)) a certificate, dated such date and signed by an executive officer of each of the CompanyCompany and the Operating Partnership, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company and the Operating Partnership contained in this Agreement are true and correct as of such date; (ii) each of the Company has and the Operating Partnership have complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been initiated or, to the best knowledge of the CompanyCompany or the Operating Partnership, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers or the Forward Purchasers expressly for use in the General Disclosure PackagePackage (it being understood that such information consists solely of the information specified in Section 8(b)). The officer officers signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers and the Forward Purchasers shall have received on each date specified in Section 6(m)Representation Date, and on such other dates as may be reasonably requested by the ManagersManagers or the Forward Purchasers, (i) an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx Xxxxxx & Xxxxxxxxx Xxxxxxx LLP, outside special counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described substantially in the Registration Statementforms set forth in Exhibit B-1, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws an opinion of the jurisdiction of its incorporationXxxxxx & Xxxxxxx LLP, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by tax counsel for the Company, directly or through subsidiariesregarding certain U.S. federal income tax matters, free dated such date, substantially in the form set forth in Exhibit B-2, and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock an opinion of the Company conforms as to legal matters to the description thereof contained in the Registration StatementXxxxxxx Xxxxx LLP, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of Maryland counsel for the Company, or (2) any Federaldated such date, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has substantially in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result form set forth in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officialsExhibit B-3. The opinion opinions of counsel for the Company described in this Section 5(c) shall be rendered to the Managers and the Forward Purchasers at the request of the Company and shall so state therein.
(d) The Managers and the Forward Purchasers shall have received on each date specified in Section 6(n) Representation Date, and on such other dates as may be reasonably requested by the ManagersManagers or the Forward Purchasers, an opinion of Skadden, Arps, Slate, Xxxxxxx Xxxxxx & Xxxx LLPXxxxxx L.L.P., counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the ManagersManagers and the Forward Purchasers.
(e) The Managers and the Forward Purchasers shall have received on each date specified in Section 6(o)Representation Date, and on such other dates as may be reasonably requested by the ManagersManagers or the Forward Purchasers, an opinion of Sidley Austin LLP, special product counsel to the Managers and the Forward Purchasers, dated such date, in form and substance reasonably satisfactory to the Managers and the Forward Purchasers.
(f) The Managers and the Forward Purchasers shall have received on each date specified in Section 6(m), a letter dated such date in form and substance satisfactory to the ManagersManagers and the Forward Purchasers, from Deloitte & Touche KPMG LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight BoardPCAOB, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 under the Securities Act (without reliance on Rule 424(b)(8)) under the Securities Act).
(gh) The Shares and any Confirmation Shares shall have been approved for listing on the ExchangeNYSE, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (Four Corners Property Trust, Inc.)
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, ,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and that set forth in the General Disclosure Package, the effect of which isPackage that, in the judgment of the Managerseach Manager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in each Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Each Manager shall have received on each date specified in Section 6(l) Representation Date, and on such other dates as may be reasonably requested by the Managers, a certificate, dated such date Representation Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such dateRepresentation Date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such dateRepresentation Date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) if delivered on a Representation Date that is not also a Settlement Date, as of such date and as of each Representation Date, or if delivered on a Settlement Date, at the Time of Sale, if any, subsequent Sale applicable relating to the immediately preceding Representation DateShares, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) if delivered on a Representation Date that is not also a Settlement Date, as of such date and as of each Representation Date, or if delivered on a Settlement Date, at the Time of Sale, if any, subsequent Sale relating to the immediately preceding Representation applicable Shares and at the Settlement Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers any Manager expressly for use in the General Disclosure Package; and (vii) the Shares to be sold on that date, if any, have been duly and validly authorized by the Company and that all corporate action required to be taken for the authorization, issuance and sale of the Shares on that date, if any, has been validly and sufficiently taken. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m)Representation Date, and on such other dates as may be reasonably requested by the Managers, an opinion of XxxxxxXxxxxxx, Xxxxxxxxxx Head & Xxxxxxxxx Xxxxxxx LLP, outside counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of CaliforniaOhio, and is duly registered as a bank holding company and qualified as a financial holding company under the Bank Holding Company Act of 1956, as amended, with the corporate power and authority to own or leaseown, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, lease and operate its properties property and to conduct its business as described in the Prospectus; except as otherwise disclosed in each of the Registration Statement, the Prospectus and the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iiiii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in each of the Registration Statement, the Prospectus and the General Disclosure Package;
(iii) the shares of Common Stock outstanding prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and non-assessable;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A1) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Fifth Third Capital Stock” and “Certain ERISA Considerations” insofar as it purports to constitute a summary of matters of the U.S. Employee Retirement Income Security Act of 1974 and regulations or legal conclusions with respect thereto, (2) the Prospectus under the caption “Plan of Distribution” and (B3) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respectsrespects such matters, documents or proceedings;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(xvii) the Company is not andnot, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be be, required to register as an “investment company” as such term is defined in the 1940 Investment Company Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.1940, as amended; and
(xiviii) The Registration Statement has become effective under (A) in the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date opinion of such opinion counsel (other than 1) each Incorporated Document (except for the financial statements, statements and financial schedules and other financial and statistical data contained or incorporated by reference included therein, as to which such counsel need not express no any opinion) complies as to form in all material respects to the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder, and (2) the Registration Statement and the Prospectus (except for the financial statements and financial schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) comply as to form in all material respects with to the applicable requirements of the Securities Act and the Exchange Act applicable rules and regulations of the respective rules promulgated Commission thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within (B) nothing has come to the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from attention of such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, causes such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) any part of the Registration Statement, when such part became effective (except for the financial statements and financial schedules and other financial and statistical data included therein as to which such counsel need not express any belief), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Registration Statement or the Prospectus (except for the financial statements and financial schedules and other financial and statistical data included therein as to which such counsel need not express any belief), on the date of this Agreement and at the each Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure PackagePackage (except for the financial statements and financial schedules and other financial and statistical data included therein, as to which such counsel need not express any belief) as of its date, or as amended or supplemented, if applicable, as of the date of this Agreement and as of each such Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to misleading or (4) the Prospectus (except for the financial statements, statements and financial schedules and other financial and statistical data contained included therein, as to which such counsel need not express any belief), as amended or supplemented, if applicable, as of such Representation Date, contains any untrue statement of a material fact or omits to state a material fact necessary in or incorporated by reference order to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letternot misleading. In rendering such opinionopinion or opinions, such counsel Xxxxxxx Head & Xxxxxxx LLP may rely (Ai) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe Xxxxxxxx & Xxxxxxxx LLP delivered pursuant to be reliable and who are satisfactory to counsel for the Managers Section 5(e); and (Bii) as to matters of fact, to the extent they deem propercertain other matters, on certificates of responsible officers of the Company, public officials and others deemed by such counsel to be responsible.
(d) The Managers shall have received on each Representation Date, and on such other dates as may be reasonably requested by the Managers, an opinion of Xxxx X. Xxxxxxxx, Esq., General Counsel of the Company, dated such date, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Ohio, with power and authority to own, lease and operate its property and conduct its business as described in each of the Registration Statement, the Prospectus and the General Disclosure Package;
(ii) Fifth Third Bank and Fifth Third Bank (Michigan) have been duly organized or incorporated and are validly existing as a bank or corporation in good standing under the laws of its respective jurisdiction of organization or incorporation; and all of the issued shares of capital stock of each such entity have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors’ qualifying shares and except as otherwise set forth in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iii) to the best of such counsel’s knowledge and other than as set forth in the Prospectus, such counsel does not know of any legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described; and
(iv) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not constitute a breach of or default under the Second Amended Articles of Incorporation, as amended, or Code of Regulations, as amended, of the Company or, to the best of such counsel’s knowledge, any agreement, indenture or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as have been obtained under the Securities Act and as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares; In rendering such opinion or opinions, Xxxx X. Xxxxxxxx may rely as to matters involving the application of laws of the State of New York upon the opinion of Xxxxxxxx & Xxxxxxxx LLP delivered pursuant to Section 5(e).
(e) The Managers shall have received on each Representation Date, and on such other dates as may be reasonably requested by the Managers, an opinion of Xxxxxxxx & Xxxxxxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers. Xxxxxxxx & Xxxxxxxx LLP may rely (i) as to matters involving the application of laws of the State of Ohio upon the opinions of Xxxxxxx Head & Xxxxxxx LLP and Xxxx X. Xxxxxxxx, Esq. delivered pursuant to Sections 5(c) and (d), respectively; and (ii) as to certain other matters on certificates of responsible officers of the Company, public officialsofficials and others deemed by such counsel to be responsible. The opinion opinions of counsel for the Company described in this Section Sections 5(c) and 5(d) above shall be rendered to the Managers at the request of the Company and shall so state therein.
(df) The Managers shall have received received, upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder) and each time that (i) the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information, (ii) any Shares are delivered to any Manager as principal on each date specified in Section 6(n) a Settlement Date, at such Manager’s oral or written request and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory upon reasonable advance oral or written notice to the Managers.
Company, (eiii) The Managers the Company shall have received file an annual report on each date specified in Section 6(o)Form 10-K or quarterly report on Form 10-Q, and (iv) there is filed with the Commission any document (other than an annual report on Form 10-K or quarterly report on Form 10-Q) incorporated by reference into the Prospectus which contains additional amended financial information or (v) on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the Managers, from Deloitte & Touche LLP, independent public accountants for the Company, Company (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters effect set forth in connection with registered public offerings Annex I hereto (the first such letter, the “Initial Comfort Letter”) and (CB) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (Fifth Third Bancorp)
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(iiiii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the ManagersManager, an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx Xxxxxx & Xxxxxxxxx Xxxxxx LLP, outside counsel for the Company, and an opinion of (A) Xxxxxx & Xxxxxx LLP, outside Liberia and Xxxxxxxx Islands counsel for the Company, and (B) MJM Limited, outside Bermuda counsel for the Company, as applicable, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation set forth in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officialsSchedule V hereto. The opinion of counsel for the Company described in this Section 5(c) above shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(d) The Managers Manager shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the ManagersManager, an opinion and negative assurance letter of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Manager, dated such date, in form and substance reasonably satisfactory to the Manager.
(e) The Manager shall have received on each date specified in Section 6(o), a letter dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLPPricewaterhouseCoopers AS, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) On each date specified in Section 6(p), and only to the extent required by the terms of Section 6(p), the Manager shall have received a letter dated such date in form and substance satisfactory to the Manager, from the Chief Financial Officer of the Company, stating, as of such date, the conclusions and findings of such individual, in her capacity as Chief Financial Officer of the Company, with respect to certain current financial information requested by the Manager.
(g) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
and (ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesCompany, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s sole and reasonable judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s sole judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l6(1) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceeding proceedings for that purpose has or pursuant to Section 8A of the Securities Act have been initiated instituted or are pending or, to the knowledge of the Company, threatened are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. US.129929318.07 The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m) a certificate of the Secretary of the Company, dated such date, as described in Section 6(m), and .
(d) The Manager shall have received on such other dates as may be reasonably requested by the Managers, each date specified in Section 6(n) an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLPXxxxxx XxXxxxxx PC, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated Manager, which opinion and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The negative assurance letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(de) The Managers Manager shall have received on each date specified in Section 6(n6(o) , and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx Faegre Drinker Xxxxxx & Xxxx Xxxxx LLP, counsel for the ManagersManager, dated such date, in form and substance reasonably satisfactory to the ManagersManager.
(ef) The Managers Manager shall have received on each date specified in Section 6(o6(p), and on such other dates as may be reasonably requested by the Managers, a letter letters dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLPCompany Auditor, current independent registered public accountants accountant for the Company, (Ai) confirming that they are as of the date of its respective audit report(s), it was an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (Bii) stating, as of such date, 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 (the first such letterletters from Company Auditor, the “Initial Comfort Letter”) and (Ciii) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in the rating accorded any of the securities of the Company and no proceeding for such purpose or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) pursuant to Section 8A under the Securities ActAct shall be pending before or threatened by the Commission; and
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, Statement and the Prospectus and the General Disclosure Package, the effect of which isthat, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l6(m) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section Sections 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, Supplement and any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package Prospectus did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure PackageProspectus. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m6(n), and on such other dates as may be reasonably requested by the ManagersManager, an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, outside counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the ManagersManager.
(ed) The Managers Manager shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the ManagersManager, an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Manager, dated such date, with respect to such matters as the Manager may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters. The opinion of counsel for the Company described in Section 5(c) above shall be rendered to the Manager at the request of the Company and shall so state therein.
(e) The Manager shall have received on each date specified in Section 6(p), a letter dated such date in form and substance satisfactory to the ManagersManager, from Deloitte Ernst & Touche Young LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, Supplement or the Prospectus or any issuer free writing prospectusProspectus, as amended and supplemented to the date of such letter.
(f) The Manager shall have received, on the first date specified in Section 6(p) on or after such time as the audited consolidated financial statements and schedules of Romeo Power are incorporated by reference in the Registration Statement or the Prospectus and on each subsequent date specified in Section 6(p) until such time as the audited consolidated financial statements and schedules of Romeo Power are no longer incorporated by reference in the Registration Statement or the Prospectus, a letter dated such date in form and substance satisfactory to the Manager, from Deloitte & Touche LLP, independent public accountants for Xxxxx Xxxxx, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Romeo Comfort Letter”) and (C) updating the Initial Romeo Comfort Letter with any information that would have been included in the Initial Romeo Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement or the Prospectus, as amended and supplemented to the date of such letter.
(g) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares to be sold shall have been approved for listing on the ExchangeNasdaq, subject only to a official notice of issuance at or prior to the applicable Settlement Dateissuance.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
and (ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesCompany, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s sole judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s sole judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceeding proceedings for that purpose has or pursuant to Section 8A of the Securities Act have been initiated instituted or are pending or, to the knowledge of the Company’s knowledge, threatened are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m) a certificate of the Secretary of the Company, date such date, as described in Section 6(m), and .
(i) The Manager shall have received on such other dates as may be reasonably requested by the Managers, each date specified in Section 6(m) an opinion and negative assurance letter of XxxxxxLxxxxx & Wxxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated Manager, which opinion and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The negative assurance letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(dii) The Managers Manager shall have received on each date specified in Section 6(n6(m) , and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of SkaddenMatterLight IP, Arps, Slate, Xxxxxxx & Xxxx LLP, intellectual property counsel for the ManagersCompany, dated such date, in form and substance reasonably satisfactory to the ManagersManager, which opinion and negative assurance letter shall be rendered to the Manager at the request of the Company and shall so state therein.
(e) The Managers Manager shall have received on each date specified in Section 6(n) an opinion and negative assurance letter of Faegre Drinker Bxxxxx & Rxxxx LLP, counsel for the Manager, dated such date, in form and substance reasonably satisfactory to the Manager.
(f) The Manager shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter letters dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLPCompany Auditor, current independent registered public accountants accountant for the Company, (A) confirming that they are as of the date of its respective audit report(s), it was an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letterletters from Company Auditor, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(iiiii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the Managerseach Manager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in each Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section Sections 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers any Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The If requested by a Manager, the Managers shall have received on each date that the certificate specified in Section 6(m)5(b) is required to be delivered under Section 6(l) a certificate, dated such date and on such other dates as may be reasonably requested signed by the Managers, an opinion principal financial officer of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated as of such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n6(m) , and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxx & Xxxxxxx & Xxxx LLP, outside counsel for the ManagersCompany, dated such date, date in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(n) an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers, , and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to deliver such opinion and negative assurance letter. The opinion and negative assurance letter of counsel for the Company described in Section 5(c) above shall be rendered to the Managers at the request of the Company and shall so state therein.
(f) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the Managers, from Deloitte & Touche LLP, the Company’s independent public accountants accountant(s) for the Companyperiods covered in the General Disclosure Package, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (Joby Aviation, Inc.)
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or to the knowledge of the Company, threatened by the Commission;
(ii) As of each Settlement Date and the Time of Delivery, there shall not have occurred any downgradingmaterial adverse change, nor shall or any notice have been given of any intended or potential downgrading or of any review for development involving a possible change that does not indicate the direction of the possible prospective material adverse change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
condition (ii) there shall not have occurred any change in the condition, financial or otherwise), or in the earnings, stockholders’ equity, business affairs or operations business prospects of the Company and its subsidiaries, taken as a whole, from the respective dates of that set forth in the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment Managers’ judgment, makes it impracticable to proceed with the offering, sale or delivery of the Managers, so material and adverse as to make it impractical or inadvisable to market the Shares on the terms and in the manner contemplated in the ProspectusRegistration Statement, the Prospectus and the General Disclosure Package.
(b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer the Chief Financial Officer and the Treasurer or Controller of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; and (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfiedsatisfied in all material respects; (viv) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (viv) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under in which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure PackageManagers’ Information. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m), (i) an opinion, taxation opinion and on such other dates as may be reasonably requested by the Managersnegative assurance letter of Skadden, an opinion of XxxxxxArps, Xxxxxxxxxx Slate, Xxxxxxx & Xxxxxxxxx Xxxx LLP, outside special United States counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) an opinion of Xxxxxx Xxxxxx & Xxxxxxxx LLP, counsel for the Subsidiary has been duly organized and is validly existing Company as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may beLiberian law, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock opinion of the Company conforms as Faegre Drinker Xxxxxx & Xxxxx LLP, special U.S. Federal tax counsel to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, each dated the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtainedrespective dates, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase form and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are substance reasonably satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officialsManagers. The opinion opinions of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers), an opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx Shearman & Xxxx Sterling LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the Managers, from Deloitte & Touche PricewaterhouseCoopers LLP, the independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within a “comfort letter” dated the meaning of date thereof addressed to the Securities ActManagers, in form and substance reasonably satisfactory to the Exchange Act and the Public Company Accounting Oversight BoardManagers, (B) stating, as of such date, the conclusions and findings of such firm with respect to covering the financial information in the General Disclosure Package and other customary matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings (the first such letter, the ““ Initial Comfort Letter”) ), and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) The Managers shall have received on each date specified in Section 6(o), a written certificate dated such date and executed by the Chief Financial Officer of the Company, which shall (A) contain statements and information of the type ordinarily included in a “CFO certificate”, providing “management comfort” with request to certain financial information contained in the Registration Statement, the Prospectus Supplement and the Prospectus (the first such certificate, the “Initial CFO Certificate”) and (B) update the Initial CFO Certificate with any information that would have been included in the Initial CFO Certificate had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(g) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date and by each Time of Delivery shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement DateDate or Time of Delivery.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (Royal Caribbean Cruises LTD)
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
and (ii) there shall not have occurred any change in the condition, financial or otherwise, or in the earnings, business or operations of Material Adverse Effect on the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure PackagePackage that, the effect of which ismakes it, in the judgment of the ManagersManager’s sole judgment, so material and adverse as to make it impractical or inadvisable impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceeding proceedings for that purpose has or pursuant to Section 8A of the Securities Act have been initiated instituted or are pending or, to the knowledge of the Company, threatened are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received (i) on each date specified in Section 6(m) a certificate of the Secretary of the Company, dated such date, as described in Section 6(m) and (ii) on each date specified in Section 6(r) a certificate of the Chief Financial Officer of the Company, dated such date, as described in Section 6(r).
(d) The Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, ) an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated Manager, which opinion and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The negative assurance letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers Manager at the request of the Company and shall so state therein. The Manager shall have received on each date specified in Section 6(m) an opinion and negative assurance letter of the general counsel of the Company, dated such date, in form and substance reasonably satisfactory to the Manager, which opinion and negative assurance letter shall be rendered to the Manager at the request of the Company and shall so state therein.
(de) The Managers Manager shall have received on each date specified in Section 6(n6(o) , and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx Faegre Drinker Xxxxxx & Xxxx Xxxxx LLP, counsel for the ManagersManager, dated such date, in form and substance reasonably satisfactory to the ManagersManager.
(ef) The Managers Manager shall have received on each date specified in Section 6(o6(p), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLP, independent public accountants for the CompanyArmanino, (A) confirming that they are as of the date of its audit report, it was an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, the conclusions and findings of such firm Armanino with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter; provided, however, that except in connection with a block sale, the Company shall not be required to provide more than one comfort letter per calendar quarter so long as there are no subsequent restatements or material revisions in the periodic reports covered in the comfort letter previously delivered in such quarter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall either have been (i) approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement DateDate or (ii) the Company shall have filed an application for the listing of the Shares on the Exchange at, or prior to, the Company’s submission of an order to sell Shares.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(iiiii) there shall not have occurred any change change, or any development involving a prospective change, in the conditionassets, business, condition (financial or otherwise), operations or in the earnings, business or operations earnings of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the Managers’ judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Managers’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section Sections 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent prior to the immediately preceding Representation Datesuch date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent prior to the immediately preceding Representation Datesuch date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure PackagePackage (it being understood and agreed that such information consists solely of the information specified in Section 8(b)). The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx Xxxx & Xxxxxxxxx Xxxxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) the initial Representation Date, and on such other dates as may be reasonably requested by the ManagersManagers in the event there is a change in the California Public Utilities Code that could regulate the issuance of the Shares, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx Nossaman LLP, regulatory counsel for the ManagersCompany, regarding certain regulatory matters, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o6(n), and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of Shearman & Sterling LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers. The opinions of counsel for the Company described in Section 5(c) and Section 5(d) above shall be rendered to the Managers at the request of the Company and shall so state therein.
(f) The Managers shall have received on each date specified in Section 6(o), a letter dated such date in form and substance reasonably satisfactory to the Managers, from Deloitte & Touche LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectusprospectus relating to the offer and sale of the Shares, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to in connection with the offer and sale of the Shares have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the ExchangeNYSE, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (California Water Service Group)
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
and (ii) there shall not have occurred any change in the condition, financial or otherwisechange, or any development reasonably likely to result in the earnings, business or operations of the Company and its subsidiaries, taken as a wholeMaterial Adverse Effect, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage and that makes it, in the judgment of the Managers’ sole judgment, so material and adverse as to make it impractical or inadvisable impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceeding proceedings for that purpose has or pursuant to Section 8A of the Securities Act have been initiated instituted or are pending or, to the knowledge of the Company, threatened are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m) a certificate of the Secretary of the Company, dated such date, as described in Section 6(m), and .
(d) The Managers shall have received on such other dates as may be reasonably requested by the Managers, each date specified in Section 6(m) an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact which opinion and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) negative assurance letter shall be rendered to the Managers at the request of the Company and shall so state therein.
(de) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx Faegre Drinker Xxxxxx & Xxxx Xxxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(ef) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter letters dated such date in form and substance satisfactory to the Managers, from Deloitte & Touche LLPCompany Auditor, current independent registered public accountants accountant for the Company, (A) confirming that they are as of the date of its respective audit report(s), it was an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letterletters from Company Auditor, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (Serve Robotics Inc. /DE/)
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there The Prospectus shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate filed with the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Commission pursuant to Rule 436(g)(2424(b) under the Securities ActAct within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; and
(ii) there all filings required by Rule 433 under the Act shall not have occurred any change in been made, and no such filings shall have been made without the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which is, in the judgment consent of the Managers, so material and adverse as to make it impractical or inadvisable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has 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 for that purpose has or pursuant to Section 8A of the Act shall have been initiated or, to the knowledge of the Company, or threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Securities Act (in has been received by the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), Company; and all requests for additional information on the part of the Commission shall have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement or omission made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatenedManagers’ reasonable satisfaction.
(cb) The Managers shall have received on On each date specified in Section 6(m5(q), and on such other dates as may be reasonably requested by the Managers, an the Managers shall have received opinion letters, dated such date, of XxxxxxXxxxx X. Xxxxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLPExecutive Vice President and General Counsel of the Company or Xxxxx Xxxxxxx, outside Managing Attorney and Assistant Corporate Secretary of the Company (or other reasonably acceptable internal counsel of the Company), that address substantially the matters set forth in Exhibit B, and Xxxxx Day, Chicago, Illinois, counsel for the Company, dated such date, to that address substantially the effect that:matters set forth in Exhibit C.
(ic) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on On each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o5(r), and on such other dates as may be reasonably requested by the Managers, a letter the Managers shall have received opinions or opinions and negative assurance letters, dated such date in form and substance satisfactory to date, from Hunton Xxxxxxx Xxxxx LLP, New York, New York, counsel for the Managers, with respect to such matters as the Managers may reasonably request, 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.
(d) On each date specified in Section 5(p), the Managers shall have received a certificate of the President, Executive Vice President, Senior Vice President or any Vice President of the Company, dated such date, as to the matters set forth in paragraphs (a) and (h) of this Section 8 and to the further effect that the signers of such certificate have examined the Registration Statement, the Prospectus and this Agreement and that, to the best of his or her knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; and
(ii) there has been no material adverse change in the condition of the Company and its subsidiaries taken as a whole, financial or otherwise, whether or not arising in the ordinary course of business, from that set forth in or contemplated by the Registration Statement, the Disclosure Package, or the Prospectus.
(e) On each date specified in Section 5(s), the Managers shall have received letters from Deloitte & Touche LLP, independent public accountants for the CompanyCompany (dated each such date, and in form and substance satisfactory to the Managers) advising that (Ai) confirming that they are an independent registered public accounting firm within with respect to the meaning Company as required by the Act and published rules and regulations of the Securities ActCommission thereunder, (ii) in their opinion, the consolidated financial statements and supplemental schedules included or incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus and covered by their opinion filed with the Commission under Section 13 of the Exchange Act comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the Public Company Accounting Oversight Boardpublished rules and regulations of the Commission thereunder, (Biii) statingthat they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholders of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Disclosure Package or the Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters may be specified in connection with registered public offerings (the first such letter, and on the “Initial Comfort Letter”basis of such limited review and procedures nothing came to their attention that caused them to believe that: (A)
(1) and (C) updating any material modifications should be made to any unaudited consolidated financial statements of the Initial Comfort Letter with any information that would have been Company included or incorporated by reference in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Disclosure Package or the Prospectus Supplementfor them to be in conformity with generally accepted accounting principles or (2) any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus or any issuer free writing prospectus, do not comply as amended to form in all material respects with the applicable accounting requirements of the Exchange Act and supplemented the rules and regulations of the Commission applicable to Form 10-Q; and (B) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the Disclosure Package or the Prospectus and except as set forth in or contemplated by the Registration Statement, the Disclosure Package or the Prospectus, there were any adverse changes, at a specified date not more than three business days prior to the date of the letter, in the capital stock of the Company, incurrences of long-term debt of the Company on a consolidated basis as compared to the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Disclosure Package or the Prospectus or, as of a specified date, there were any decreases in stockholders’ equity or net current assets of the Company on a consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Disclosure Package or the Prospectus, or for the period from the date of the most recent financial statements included or incorporated by reference in the Disclosure Package or the Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Managers; and (iv) they have carried out specified procedures performed for the purpose of comparing certain specified financial information and percentages (which is limited to financial information derived from general accounting records of the Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such accounting records) included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus with indicated amounts in the financial statements or accounting records of the Company and (excluding any questions of legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them.
(f) All filings Subsequent to the respective dates as of which information is given in the Registration Statement and the Disclosure Package, there shall not have been any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 8 which makes it impractical or inadvisable in the judgment of the Managers to proceed with the Commission required public offering or the delivery of the Shares on the terms and in the manner contemplated by Rule 424 under the Securities Act Disclosure Package.
(g) Subsequent to have been filed by each Time the later of Sale or related Settlement Date (A) the execution and delivery of this Agreement and (B) the immediately preceding Representation Date, (i) no downgrading shall have been made within occurred in the applicable time period prescribed rating accorded any debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of the Exchange Act (other than downgrades of debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of downgrades of ratings of any third parties insuring such filing debt securities) 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 the debt securities or preferred stock of or guaranteed by Rule 424 the Company (without reliance other than an announcement with positive implications of a possible upgrading and other than with respect to debt securities issued by or on Rule 424(b)(8)behalf of governmental entities for the benefit of the Company solely as a result of any such announcement with respect to any third parties insuring such debt securities).
(gh) Since the most recent dates as of which information is given in the Disclosure Package and the Prospectus there has been no material adverse change in the condition of the Company and its subsidiaries taken as a whole, financial or otherwise, whether or not arising in the ordinary course of business, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which is in the judgment of the Managers so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Shares on the terms and in the manner contemplated by this Agreement and the Prospectus.
(i) No Manager shall have advised the Company that the Registration Statement, Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the opinion of counsel for the Managers is material or omits to state a fact which in the opinion of counsel for the Managers is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(j) 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 any Settlement Date, 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 any Settlement Date, prevent the issuance or sale of the Shares.
(k) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Managers and prior to any Settlement Date, the Company shall have furnished to the Managers such other customary information, certificates and documents as they may reasonably request.
(l) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance Nasdaq at or prior to the applicable Settlement Date.
(hm) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
(n) The Company shall not have submitted an order to sell Shares to any Manager in an amount to the extent that the sum of (x) the gross sales price of Shares requested to be sold by any Manager plus (y) the aggregate gross sales price of shares of Common Stock previously issued and sold pursuant to this Agreement would exceed the Maximum Program Amount.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each Manager hereunder and under any Terms Agreement to which it is a party will be subject, in its discretion, to the condition that all representations and warranties and other statements of the Managers are subject Company herein are, at and as of each Applicable Time, Settlement Date and Representation Date, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) Since The Prospectus and any supplement thereto required by Rule 424 under the later Act shall have been filed with the Commission pursuant to Rule 424 under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 3(a); all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; 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, to the Company’s knowledge, threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been issued or received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Managers’ reasonable satisfaction;
(Ab) Xxxxxx & Xxxxxxx LLP, counsel for the date Managers, shall have furnished to such Manager, on each Representation Date on which the same is to be delivered pursuant to Section 3(n), such written opinion(s) or letter(s), dated as of this Agreement such date, in form and substance satisfactory to such Manager, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(Bc) DLA Piper LLP (US), counsel for the immediately preceding Company, or such other counsel acceptable to the Managers, shall have furnished to such Manager, on each Representation Date:Date on which the same is to be delivered pursuant to Section 3(n), a written corporate opinion, tax opinion and letter, dated as of such date, in form and substance satisfactory to such Manager, in the forms set forth in Annex II(a), Annex II(b) and Annex II(c), respectively, hereto;
(d) The general counsel of the Company, or such other counsel acceptable to the Managers, shall have furnished to such Manager, on each Representation Date on which the same is to be delivered pursuant to Section 3(n), a written certificate, dated as of such date, in form and substance satisfactory to such Manager, in the form set forth in Annex III hereto;
(e) On each Representation Date on which the same is to be delivered pursuant to Section 3(n), each of Ernst & Young LLP and any other auditing firm that has certified any financial statements included in the Registration Statement or the Prospectus shall have furnished to such Manager a letter or letters, dated as of such date, in form and substance satisfactory to such Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement or the Disclosure Package in accordance with AS 4105, Interim Financial Information, and containing other statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters;
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus there shall not have occurred been any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities capital stock or long-term debt of the Company or any of its subsidiaries by or any “nationally recognized statistical rating organization”change, as such term is defined for purposes of Rule 436(g)(2) under or any development involving a prospective change, in or affecting the Securities Act; and
(ii) there shall not have occurred any change in the conditiongeneral affairs, management, financial position, stockholders’ equity or otherwise, or in the earnings, business or results of operations of the Company and its subsidiaries, taken as a whole, from otherwise than as set forth or contemplated in the respective dates of the Registration Statement, the Prospectus and the General Disclosure PackageProspectus, the effect of which iswhich, in the any such case described in clause (i) or (ii), is in such Manager’s judgment of the Managers, so material and adverse as to make it impractical impracticable or inadvisable to market proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.;
(bg) The Managers On or after the date hereof, (i) no downgrading shall have received on each date specified 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 in Section 6(l3(a)(62) a certificate, dated such date and signed by an executive officer of the CompanyExchange Act, to the effect set forth in Section 5(a)(i) and (ii) above and 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;
(h) The Shares have been duly listed, subject to notice of issuance, on the effect that Exchange;
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements of this Agreement or any applicable Terms Agreement; and
(j) The Company shall have furnished or caused to be furnished to such Manager, on each Representation Date on which the same is to be delivered pursuant to Section 3(n), certificates of officers of the Company reasonably satisfactory to such Manager as to the accuracy of the representations and warranties of the Company contained in this Agreement are true herein at and correct as of such date; (ii) , as to the performance by the Company has complied with of all of the agreements and satisfied all of the conditions on its part obligations hereunder to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or, as to the knowledge matters set forth in subsections (a) and (f) of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) this Section 6 as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement or omission made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m), and on such other dates matters as such Manager may be reasonably requested by the Managers, an opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Actrequest.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the Managers, from Deloitte & Touche LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(g) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
and (ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesCompany, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the Managers’ sole judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Managers’ sole judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceeding proceedings for that purpose has or pursuant to Section 8A of the Securities Act have been initiated instituted or are pending or, to the knowledge of the Company’s knowledge, threatened are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m) a certificate of the Secretary of the Company, date such date, as described in Section 6(m), and .
(i) The Managers shall have received on such other dates as may be reasonably requested by the Managers, each date specified in Section 6(n)(i) an opinion and negative assurance letter of XxxxxxXxxxxx & Xxxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact which opinion and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) negative assurance letter shall be rendered to the Managers at the request of the Company and shall so state therein.
(dii) The Managers shall have received on each date specified in Section 6(n6(n)(ii) an opinion and negative assurance letter of MatterLight IP, intellectual property counsel for the Company, dated such date, in form and on such other dates as may be substance reasonably requested by satisfactory to the Managers, an which opinion and negative assurance letter shall be rendered to the Managers at the request of Skaddenthe Company and shall so state therein.
(e) The Managers shall have received on each date specified in Section 6(o) a negative assurance letter of Xxxxx, ArpsXxxxx, SlateXxxx, Xxxxxx, Xxxxxxx & Xxxx LLPand Xxxxx, P.C., counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(ef) The Managers shall have received on each date specified in Section 6(o6(p), and on such other dates as may be reasonably requested by the Managers, a letter letters dated such date in form and substance satisfactory to the Managers, from Deloitte & Touche LLPCompany Auditor, current independent registered public accountants accountant for the Company, (A) confirming that they are as of the date of its respective audit report(s), it was an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letterletters from Company Auditor, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager under this Agreement are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in the rating accorded any of the securities of the Company and no proceeding for such purpose or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) pursuant to Section 8A under the Securities ActAct shall be pending before or threatened by the Commission; and
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, Statement and the Prospectus and the General Disclosure Package, the effect of which isthat, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l6(m) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section Sections 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, Supplement and any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package Prospectus did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure PackageProspectus. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m)received, and on such other dates as may be reasonably requested by the Managers, an opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) a certificate of the Company’s chief financial officer with respect to certain financial data contained in the Registration Statement, and on providing “management comfort” with respect to such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such dateinformation, in form and substance reasonably satisfactory to the ManagersManger and its counsel.
(ed) The Managers Manager shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the ManagersManager, an opinion and negative assurance letter of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the Manager.
(e) The Manager shall have received on each date specified in Section 6(p), and on such other dates as may be reasonably requested by the Manager, an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Manager, dated such date, with respect to such matters as the Manager may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters. The opinion of counsel for the Company described in Section 5(d) above shall be rendered to the Manager at the request of the Company and shall so state therein.
(f) The Manager shall have received on each date specified in Section 6(q), a letter dated such date in form and substance satisfactory to the ManagersManager, from Deloitte Ernst & Touche Young LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, Supplement or the Prospectus or any issuer free writing prospectusProspectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares to be sold shall have been approved for listing on the ExchangeNasdaq, subject only to a official notice of issuance at or prior to the applicable Settlement Dateissuance.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which is, in the judgment of the Managers, so material and adverse as to make it impractical or inadvisable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement or omission made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, an opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item Section 601(b)(4) or Item Section 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of date that the most recent quarterly period for which a 10-K or most recent 10-Q has been filed by the Company was filed, whichever is most recent, and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the Managers, from Deloitte & Touche LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(g) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities long-term senior unsecured debt of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”Xxxxx’x Investors Service, as such term is defined for purposes of Rule 436(g)(2) under the Securities ActInc. or Standard & Poor’s Ratings Services; and
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and that set forth in the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) Representation Date a certificate, dated such date Representation Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such dateRepresentation Date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such dateRepresentation Date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) if delivered on a Representation Date that is not also a Settlement Date, as of such date and as of each Representation Date, or if delivered on a Settlement Date, at the Time of Sale, if any, subsequent Sale applicable relating to the immediately preceding Representation DateShares, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) if delivered on a Representation Date that is not also a Settlement Date, as of such date and as of each Representation Date, or if delivered on a Settlement Date, at the Time of Sale, if any, subsequent Sale relating to the immediately preceding Representation applicable Shares and at the Settlement Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information the Manager Information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package; and (vii) the Shares to be sold on that date, if any, have been duly and validly authorized by the Company and that all corporate action required to be taken for the authorization, issuance and sale of the Shares on that date, if any, has been validly and sufficiently taken. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, Representation Date an opinion of Xxxxxx, Xxxxxxxxxx King & Xxxxxxxxx Spalding LLP, outside counsel for the Company, dated such date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will have been duly authorized and will be validly issued, fully paid and non-assessable and the issuance of such Shares will not be subject to any preemptive or similar rights;
(iii) The statements relating to legal matters, documents or proceedings included in the Prospectus under the captions “Dividend Policy” and “Description of Capital Stock”, insofar as these statements purport to describe the provisions of the Company’s Restated Articles of Incorporation, as amended, Bylaws or an agreement or contract to which the Company is a party, constitute an accurate summary of the matters set forth therein in all material respects; and
(iv) The statements set forth in the Prospectus under the captions “Certain United States Federal Tax Consequences to Non-U.S. Holders of Common Stock” and “Employee Retirement Income Security Act”, insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(d) The Manager shall have received on each Representation Date an opinion of Xxxxxxx X. Xxxxxx, General Counsel of the Company, dated such date, to the effect that
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of CaliforniaGeorgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) , and all of the Shares issued shares of capital stock of the Company have been duly and validly authorized and, when and issued and delivered in accordance with the terms of this Agreement, will be validly issued, are fully paid and non-assessable, ;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the issuance laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such Shares will not be qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any preemptive such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or similar rightsindirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) this Agreement has been duly authorizedTo such counsel’s knowledge and other than as set forth in the Prospectus, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court there are no legal or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over proceedings pending to which the Company or any of its properties subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(“Applicable Governmental Authority”vi) The execution and delivery of this Agreement, the issuance and sale of the Securities at each Time of Sale, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or (B) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any agreementindenture, indenture mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or the Subsidiary SunTrust Bank is a party that has been filed pursuant or by which the Company or SunTrust Bank is bound or to Item 601(b)(4) which any of the property or Item 601(b)(10) assets of Regulation Sthe Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-K as exhibits to: (1) laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for SunTrust Bank or any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opiniontheir properties;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no No consent, approval, authorization, filing with order, registration or order qualification of or with any Applicable Governmental Authority (a “Governmental Action”) court or governmental agency or body is required for the valid authorization, execution, issuance, issuance and sale and delivery of the Shares Securities or the consummation by the Company of the transactions contemplated by this Agreement, except for any Governmental Actions that such as have been obtained, obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the blue sky state securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Shares Securities by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; andManager;
(xviii) the The Company is not andnot, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be be, required to register as an “investment company” as such term is defined in the 1940 Investment Company Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.1940, as amended;
(xiix) The Registration Statement has become effective under Statement, the Securities Act; no stop order suspending Prospectus and any further amendments and supplements thereto, as applicable, made by the effectiveness of the Registration Statement has been issued and, Company prior to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion Representation Date (other than the financial statements, statements and related schedules and other financial data information contained or incorporated by reference thereintherein and any Form T-1 Statements of Eligibility filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to such Representation Date (other than the financial statements and related schedules and other financial information contained 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 Act or the Exchange Act Act, as applicable, and the respective rules promulgated and regulations of the Commission thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to. In addition, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from although such counsel shall include a separate paragraph to need not pass upon or assume any responsibility for the effect that in the course of its engagement as counsel to the Company in connection with the offering accuracy, completeness or fairness of the Shares, it has participated statements contained in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and or the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoingProspectus, such counsel will advise shall confirm that he has no reason to believe that:
(i) any part of the ManagersRegistration Statement, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Timeits effective date, contained any an untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading, ;
(2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3ii) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any an untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(iii) the Prospectus, as of its date and as of the date of such opinion, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; providedor
(iv) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, howeverwith respect to clauses (i), that it is understood that (ii), (iii) and (iv) above, such counsel is not requested to and will need not express any a belief in this paragraph with respect to the financial statements, statements and related schedules and other financial data information contained in or incorporated by reference in the Registration Statementtherein, the General Disclosure Package or the Prospectus. References and with respect to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinionclause (i) above, such counsel need not express a belief with respect to any Statements of Eligibility on Form T-1.
(e) The Manager shall have received on each Representation Date an opinion of Xxxxxxxx & Xxxxxxxx LLP, counsel for the Manager, dated such date, in form and substance reasonably satisfactory to the Manager. Xxxxxxxx & Xxxxxxxx LLP may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opiniongoverned by Georgia Law, upon the opinion of other counsel of good standing whom they believe King & Spalding LLP delivered pursuant to be reliable Section 5(c) and who are satisfactory to counsel for the Managers and (B) as to matters of factXxxxxxx X. Xxxxxx, to the extent they deem proper, on certificates of responsible officers General Counsel of the Company and public officialsCompany, delivered pursuant to Section 5(d). The opinion of counsel for the Company described in this Section 5(c) above and the opinion of the General Counsel of the Company described in Section 5(d) shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(df) The Managers Manager shall have received on received, upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder) and each date specified in Section 6(ntime that (i) the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information, and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory (ii) any Shares are delivered to the Managers.
Manager as principal on a Settlement Date, at the Manager’s oral or written request and upon reasonable advance oral or written notice to the Company, (eiii) The Managers the Company shall have received file an annual report on each date specified in Section 6(o)Form 10-K or quarterly report on Form 10-Q, and or (iv) there is filed with the Commission any document (other than an annual report on such other dates as may be reasonably requested Form 10-K or quarterly report on Form 10-Q) incorporated by reference into the ManagersProspectus which contains additional amended financial information, a letter dated such date in form and substance satisfactory to the ManagersManager, from Deloitte PricewaterhouseCoopers LLP and Ernst & Touche Young LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter; provided, however, the Manager may (at its sole discretion) substitute a certificate of the Company’s Chief Financial Officer containing representations and describing procedures materially similar to those found in a “comfort letter” upon the Manager’s request with respect to a filing by the Company of a Current Report on Form 8-K pursuant to section 5(f)(iv) hereof.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that would reasonably be expected to have a Material Adverse Effect and, in the judgment of the Managers’ judgment, so material and adverse as to make makes it impractical or inadvisable impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement or omission made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, an opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item Section 601(b)(4) or Item Section 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of date that the most recent quarterly period for which a 10-K or most recent 10-Q has been filed by the Company was filed, whichever is most recent, and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, Package as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the Managers, from Deloitte & Touche LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(g) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (Pacific Gas & Electric Co)
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager under this Agreement are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in the rating accorded any of the securities of the Company and no proceeding for such purpose or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) pursuant to Section 8A under the Securities ActAct shall be pending before or threatened by the Commission; and
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, Statement and the Prospectus and the General Disclosure Package, the effect of which isthat, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l6(m) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section Sections 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, Supplement and any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package Prospectus did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure PackageProspectus. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received, on each date specified in Section 6(n) a certificate of the Company’s chief financial officer with respect to certain financial data contained in the Registration Statement, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Manger and its counsel.
(d) The Manager shall have received on each date specified in Section 6(m6(n), and on such other dates as may be reasonably requested by the ManagersManager, an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:Manager.
(ie) The Manager shall have received on each date specified in Section 6(p), and on such other dates as may be reasonably requested by the Company has been duly incorporated Manager, an opinion and is validly existing as a corporation in good standing under negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the laws of the State of CaliforniaManager, dated such date, with the corporate power and authority respect to own or lease, such matters as the case Manager may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtainedreasonably request, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph have received such documents and information as they may reasonably request to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause enable them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that pass upon such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officialsmatters. The opinion of counsel for the Company described in this Section 5(c) above shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(df) The Managers Manager shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o6(q), and on such other dates as may be reasonably requested by the Managers, a letter one or more letters dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLP, independent public accountants for the CompanyCompany and any other applicable accounting firm reasonably requested by the Manager, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, as applicable, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, Supplement or the Prospectus or any issuer free writing prospectusProspectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares to be sold shall have been approved for listing on the ExchangeNasdaq, subject only to a official notice of issuance at or prior to the applicable Settlement Dateissuance.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions::
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in the rating accorded any of the securities of the Company and no proceeding for such purpose or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) pursuant to Section 8A under the Securities ActAct shall be pending before or threatened by the Commission; and
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesthe Subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package, it being understood that the only such information furnished by the Manager consists of the Manager Information. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened..
(c) The Managers Manager shall have received received, on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the ManagersManager, an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLPXxxxx Xxxxx L.L.P., outside counsel for the Company, dated such date, substantially to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation set forth in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state thereinExhibit B hereto.
(d) The Managers Manager shall have received received, on each date specified in Section 6(n) ), and on such other dates as may be reasonably requested by the ManagersManager, an opinion of SkaddenXxxxxxxxx XX, Arps, Slate, Xxxxxxx & Xxxx LLP, Swiss counsel for the ManagersCompany, dated such date, in form and substance reasonably satisfactory substantially to the Managerseffect set forth in Exhibit C hereto.
(e) The Managers Manager shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the ManagersManager, an opinion and a negative assurance letter of Xxxxxx & Xxxxxx, L.L.P., counsel for the Manager, dated such date, in form and substance reasonably satisfactory to the Manager. The opinion of counsel for the Company described in Section 5(c) and Section 5(d) above shall be rendered to the Manager at the request of the Company and shall so state therein.
(f) The Manager shall have received on each date specified in Section 6(p), a letter dated such date in form and substance reasonably satisfactory to the ManagersManager, from Deloitte Ernst & Touche Young LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock Public Shares shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
(j) The Shares, when delivered and paid for in accordance with the terms of this Agreement, shall have been duly and validly authorized and issued and, to the extent required under applicable Swiss law, registered with the Commercial Register of the Canton of Zug.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (Ai) the date of this Agreement and (Bii) the immediately preceding Representation Date:
(i) 1. there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) 2. there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii5(a)(1) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the ManagersManager, an opinion of Xxxxxx, Xxxxxxxxxx & (i) Husch Xxxxxxxxx Xxxxxxx LLP, outside counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described substantially in the Registration Statement, the General Disclosure Package form set forth in Exhibit B-1 hereto and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock Counsel of the Company conforms as to legal matters to the description thereof contained substantially in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered form set forth in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15Exhibit B-2 hereto, in each case fairly summarize such provisions in all material respects;
(viii) addressed to the knowledge Manager and dated as of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state thereindate.
(d) The Managers Manager shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the ManagersManager, an opinion of Cravath, Swaine & Xxxxx LLP, counsel for the Manager, dated such date, in form and substance reasonably satisfactory to the Manager.
(e) The Manager shall have received on each date specified in Section 6(o), a letter dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche KPMG LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(g) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “activelyan”actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (Commerce Bancshares Inc /Mo/)
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
and (ii) there shall not have occurred any change in the condition, financial or otherwise, or in the earnings, business or operations of Material Adverse Effect on the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure PackagePackage that, the effect of which ismakes it, in the judgment of the ManagersManager’s sole judgment, so material and adverse as to make it impractical or inadvisable impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceeding proceedings for that purpose has or pursuant to Section 8A of the Securities Act have been initiated instituted or are pending or, to the knowledge of the Company, threatened are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m) a certificate of the Secretary of the Company, date such date, as described in Section 6(m), and .
(d) The Manager shall have received on such other dates as may be reasonably requested by the Managers, each date specified in Section 6(m) an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated Manager, which opinion and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The negative assurance letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers Manager at the request of the Company and shall so state therein. The Manager shall have received on each date specified in Section 6(m) an opinion and negative assurance letter of [_______], in house counsel for the Company, dated such date, in form and substance reasonably satisfactory to the Manager, which opinion and negative assurance letter shall be rendered to the Manager at the request of the Company and shall so state therein.
(de) The Managers Manager shall have received on each date specified in Section 6(n6(o) , and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx Faegre Drinker Xxxxxx & Xxxx Xxxxx LLP, counsel for the ManagersManager, dated such date, in form and substance reasonably satisfactory to the ManagersManager.
(ef) The Managers Manager shall have received on each date specified in Section 6(o6(p), and on such other dates as may be reasonably requested by the Managers, a letter letters dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLP, independent public accountants for the CompanyCompany Auditors, (A) confirming that they are as of the date of its respective audit report(s), it was an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letterletters from Company Auditors, the “Initial Comfort LetterLetters”) and (C) updating the Initial Comfort Letter Letters with any information that would have been included in the Initial Comfort Letter Letters had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter; provided, however, that except in connection with a block sale, the Company shall not be required to provide more than one comfort letter per calendar quarter so long as there are no subsequent restatements or material revisions in the periodic reports covered in the comfort letter previously delivered in such quarter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall either have been (i) approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement DateDate or (ii) the Company shall have filed an application for the listing of the Shares on the Exchange at, or prior to, the Company’s submission of an order to sell Shares.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no stop order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in the rating accorded any of the securities of the Company and no proceeding for such purpose or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) pursuant to Section 8A under the Securities Act; andAct shall be pending before or threatened by the Commission;
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the Managers’ judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Managers’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section Sections 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m6(l), and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance of Xxxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated such date, in the form and substance satisfactory to the Managers.
(d) The Managers shall have received on each date specified in Section 6(l), and on such other dates as may be reasonably requested by the Managers, an opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the General Counsel of the Company, dated such date, in the form and substance satisfactory to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 ActManagers.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(de) The Managers shall have received on each date specified in Section 6(n) 6(l), and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of SkaddenFried, ArpsFrank, SlateHarris, Xxxxxxx & Xxxx LLP, Xxxxxxxx LLP counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(ef) The Managers shall have received on each date specified in Section 6(o6(l), and on such other dates as may be reasonably requested by the Managers, a written REIT opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, tax counsel for the Company, and related tax officers’ certificate providing certification of factual representations related to such REIT opinion substantially similar to the forms attached hereto as Exhibits B-1 and B-2, respectively, modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinion.
(g) The Managers shall have received on each date specified in Section 6(q), a letter dated such date in form and substance satisfactory to the Managers, from Deloitte Ernst & Touche Young LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gi) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hj) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (New Senior Investment Group Inc.)
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries the Subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesthe Subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer or treasurer of the Company, to the effect set forth in Section Sections 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(cx) The Managers Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the ManagersManager, an opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx Xxxxxx Xxxxxx LLP, outside counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the State of CaliforniaDelaware, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus; and the Company is duly qualified to transact business as a foreign corporation and is in good standing under the laws of the State of Indiana;
(ii) each of the Subsidiary Significant Subsidiaries has been duly organized incorporated and is a corporation validly existing as a corporation and, where applicable, in good standing under the laws of the jurisdiction of its incorporation, has with corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the General Disclosure Package and the Prospectus; except and each Significant Subsidiary is duly qualified to transact business as otherwise disclosed a foreign corporation in good standing in each of the Registration Statementjurisdictions set forth opposite the name of such Significant Subsidiary on a schedule attached to the opinion;
(iii) the Shares have been duly authorized and when delivered in accordance with the provisions of this Agreement will be validly issued, fully paid and nonassessable and conform as to legal matters in all material respects to the descriptions thereof contained in the General Disclosure Package and the Prospectus; and the stockholders of the Company have no statutory preemptive rights with respect to the Shares;
(iv) to the knowledge of such counsel, based in part upon a review of the stock register of each of NiSource Finance Corp., NiSource Capital Markets, Inc. and Northern Indiana Public Service Company (collectively, the “Specified Subsidiaries”), all of the issued and outstanding common capital stock of each of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, Specified Subsidiaries is owned by the Company, directly or through subsidiaries, free and clear . There is no perfected lien upon the outstanding shares of capital stock of any security interestof the Specified Subsidiaries and, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of counsel, there is no other lien, security interest, charge or encumbrance upon the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of any of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rightsSpecified Subsidiaries;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none the execution and delivery by the Company of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or do not, and the performance by the Company of its obligations hereunder thereunder, including the issuance and sale of the Shares, will not, (Ai) conflict with violate the certificate or result in any violation articles of (1) the Articles of Incorporation incorporation or Bylaws by-laws of the Company, or (2ii) violate any Federallaw, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant applicable to the Company and generally applicable to transactions of the type contemplated by this Agreement undertaken by issuers engaged in businesses similar to the businesses of the Company, (iii) violate any Federaljudgment, California orinjunction, order or decree identified by an officer of the Company as material to this Agreementthe Company and the Subsidiaries taken as a whole (which judgments, New York statuteinjunctions, includingorders and decrees, without limitationif any, shall be set forth in a certificate attached to the California Public Utilities Code and California usury laws (“Applicable Laws”opinion), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court (iv) breach or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach default under any indenture, mortgage, instrument or violation of, agreement which is filed as an exhibit to or constitute a default under, any agreement, indenture or other instrument filed as an exhibit through incorporation by reference to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) either the Company’s most recent Annual Report on Form 10-K (for the “10-K”), (2) year ended on the Company’s December 31 preceding the date of delivery of such opinion or any Quarterly Reports Report on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report Current Report on Form 8-K filed by subsequent to the Company between the end date of the most recent quarterly period for which a such Form 10-K or 10-Q has been filed by the Company and prior to the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included descriptions in (A) the Registration Statement and in the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description any statutes, contracts and documents, insofar as such statements purport to constitute summaries of Common Stock” matters of law and “Plan of Distribution” and (B) the Registration Statement in Item 15legal conclusions with respect thereto, in each case fairly summarize such provisions are correct in all material respects; and such counsel do not know of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the General Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement that are not so described or filed as required;
(viii) there are no contracts, agreements or understandings known to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving counsel between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or the Subsidiary or its or their property, of a character required to be disclosed in owned by such person or to require the Company to include such securities with the securities registered pursuant to the Registration Statement or with any securities being registered pursuant to any other than those disclosed in registration statement filed by the Basic Prospectus, any Interim Prospectus Supplement and Company under the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever)Securities Act;
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for neither the valid authorization, execution, issuance, sale execution and delivery of the Shares by the Company except for of this Agreement nor the performance by the Company of its obligations thereunder requires any Governmental Actions that have been obtained, and such as may be required under the blue sky laws consent or approval of any jurisdiction in connection nature from or filing with the purchase and distribution any governmental authority of the Shares State of Indiana or the United States of America, except pursuant to the Securities Act and the Exchange Act, nor is any such consent, approval or filing required by the Managers in the manner contemplated in this Agreement, the Delaware General Disclosure Package and the Prospectus; andCorporation Law;
(x) the Company is not andnot, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, Prospectus will not be be, required to register as an “investment company” as such term is defined in the 1940 Investment Company Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.1940, as amended; and
(xi) The the Registration Statement has become effective under the Securities Act; , the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion on the date specified therein, and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and, to such counsel’s knowledge, and no proceedings for that purpose or pursuant to Section 8A of the Securities Act against the Company have been threatened or instituted by, or are pending beforeor threatened under the Act, the Commission; and the Registration Statement, as of Statement on the Deemed Effective Time, effective date and the Prospectus, as of the date of the Prospectus Supplement this Agreement, and any amendment or supplement thereto, as of the date of such opinion (other than the financial statementsits date, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply complied as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act rules and regulations of the respective rules promulgated Commission thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph have had no facts come to the effect their attention that in the course of its engagement as counsel have led them to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning believe that the Registration Statement, as of the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Timeeffective date, contained any an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) that the ProspectusGeneral Disclosure Package, as of the date Time of Prospectus Supplement and as of the date hereofSale, contained or contains any included an untrue statement of a material fact or omitted 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 are were made, not misleading, (3) or that the General Disclosure PackageProspectus, as of the its date of this Agreement and as amended or supplemented as of each Representation Datesuch date, contained or contains any an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is being understood that such counsel is not requested to and will not need express any belief in this paragraph with respect no opinion as to the financial statements, schedules and statements or other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package, the Prospectus or any amendment or supplement thereto.
(c) (y) The Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Manager, an opinion of the Company’s internal counsel, dated such date, to the effect that:
(i) the descriptions in the Registration Statement and in the General Disclosure Package and the Prospectus of any legal and governmental proceedings insofar as such statements purport to constitute summaries of matters of law and legal conclusions with respect thereto, are correct in all material respects; and such counsel do not know of any legal or governmental proceedings pending to which the Company or any Subsidiary is a party or to which any of their respective properties is subject that are required to be described in the Registration Statement, the General Disclosure Package or the Prospectus. References Prospectus and are not so described; and
(ii) to the Prospectus in this paragraph shall also include any supplement thereto at the date knowledge of such letter. In rendering such opinioncounsel, such counsel may rely (A) except as to matters involving disclosed in the application General Disclosure Package and the Prospectus, there are no pending or threatened actions, suits, proceedings or investigations against or affecting the Company or any Subsidiary or any of laws of any jurisdiction other than their respective properties, assets or operations that could reasonably be expected to, individually or in the State of Californiaaggregate, New York or materially and adversely affect the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers ability of the Company and public officialsto perform its obligations under this Agreement or which could be reasonably be expected to have a Material Adverse Effect. The opinion opinions of counsel for the Company described in this Section 5(cSections 5(c)(x) and 5(c)(y) above shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(d) The Managers Manager shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the ManagersManager, an opinion of Hunton & Xxxxxxxx LLP, counsel for the Manager, dated such date, in form and substance reasonably satisfactory to the Manager.
(e) The Manager shall have received on each date specified in Section 6(o), a letter dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Company by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(g) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
and (ii) there shall not have occurred any change in the condition, financial or otherwise, or in the earnings, business or operations of Material Adverse Effect on the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s sole and reasonable judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s sole judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceeding proceedings for that purpose has or pursuant to Section 8A of the Securities Act have been initiated instituted or are pending or, to the knowledge of the Company, threatened are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m) a certificate of the Secretary of the Company, date such date, as described in Section 6(m), and .
(d) The Manager shall have received on such other dates as may be reasonably requested by the Managers, each date specified in Section 6(m) an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx Txxxxxxx Xxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated Manager, which opinion and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The negative assurance letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(de) The Managers Manager shall have received on each date specified in Section 6(n6(o) , and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx Faegre Drinker Bxxxxx & Xxxx Rxxxx LLP, counsel for the ManagersManager, dated such date, in form and substance reasonably satisfactory to the ManagersManager.
(ef) The Managers Manager shall have received on each date specified in Section 6(o6(p), and on such other dates as may be reasonably requested by the Managers, a letter letters dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLPCompany Auditor, current independent registered public accountants accountant for the Company, (A) confirming that they are as of the date of its respective audit report(s), it was an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letterletters from Company Auditor, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter; provided, however, that except in connection with a block sale, the Company shall not be required to provide more than one comfort letter per calendar quarter so long as there are no subsequent restatements or material revisions in the periodic reports covered in the comfort letter previously delivered in such quarter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall either have been (i) approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
Date or (hii) The Common Stock the Company shall be have filed an “actively-traded security” excepted from application for the requirements listing of Rule 101 of Regulation M under the Shares on the Exchange Act by subsection (c)(1) at, or prior to, the Company’s submission of such rulean order to sell Shares.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) , there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”development involving a prospective change, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and Company to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date that the certificate specified in Section 5(b) is required to be delivered under Section 6(l) a certificate, dated such date and signed by the principal financial officer of the Company, dated as of such date, in form and substance reasonably satisfactory to the Manager;
(d) The Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, ) an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx Xxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:Manager.
(ie) The Manager shall have received on each date specified in Section 6(n) an opinion and negative assurance letter of Xxxxx, Polk & Xxxxxxxx LLP, counsel for the Company has been duly incorporated Manager, dated such date, in form and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, substance reasonably satisfactory to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessableManager, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known shall have furnished to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, such documents as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required they request for the valid authorization, execution, issuance, sale and delivery purpose of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect enabling them to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of deliver such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such negative assurance letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion and negative assurance letter of counsel for the Company described in this Section 5(c) above shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(df) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers Manager shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance reasonably satisfactory to the ManagersManager, from Deloitte & Touche LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Class A Common Stock shall be is an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
(j) The Company has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice public announcement have been given made of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(iiiii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the Managers’ judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Managers’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers and the Forward Purchasers shall have received on each date specified Representation Date (as defined in Section 6(l6(k)) a certificate, dated such date and signed by an executive officer of each of the CompanyCompany and the Operating Partnership, to the effect set forth in Section Sections 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company and the Operating Partnership contained in this Agreement are true and correct as of such date; (ii) each of the Company has and the Operating Partnership have complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been initiated or, to the best knowledge of the CompanyCompany or the Operating Partnership, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure PackagePackage (it being understood that such information consists solely of the information specified in Section 8(b)). The officer officers signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers and the Forward Purchasers shall have received on each date specified in Section 6(m)Representation Date, and on such other dates as may be reasonably requested by the ManagersManagers or the Forward Purchasers, (i) an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx Xxxxxx & Xxxxxxxxx Xxxxxxx LLP, outside special counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described substantially in the Registration Statementforms set forth in Exhibit B-1, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws an opinion of the jurisdiction of its incorporationXxxxxx & Xxxxxxx LLP, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by tax counsel for the Company, directly or through subsidiariesregarding certain U.S. federal income tax matters, free dated such date, substantially in the form set forth in Exhibit B-2, and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock an opinion of the Company conforms as to legal matters to the description thereof contained in the Registration StatementXxxxxxx Xxxxx LLP, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of Maryland counsel for the Company, or (2) any Federaldated such date, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has substantially in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result form set forth in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officialsExhibit B-3. The opinion opinions of counsel for the Company described in this Section 5(c) shall be rendered to the Managers and the Forward Purchasers at the request of the Company and shall so state therein.
(d) The Managers and the Forward Purchasers shall have received on each date specified in Section 6(n) Representation Date, and on such other dates as may be reasonably requested by the ManagersManagers or the Forward Purchasers, an opinion of Skadden, Arps, Slate, Xxxxxxx Xxxxxx & Xxxx LLPXxxxxx L.L.P., counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the ManagersManagers and the Forward Purchasers.
(e) The Managers and the Forward Purchasers shall have received on each date specified in Section 6(o)Representation Date, and on such other dates as may be reasonably requested by the ManagersManagers or the Forward Purchasers, an opinion of Sidley Austin LLP, special product counsel to the Managers and the Forward Purchasers, dated such date, in form and substance reasonably satisfactory to the Managers and the Forward Purchasers.
(f) The Managers and the Forward Purchasers shall have received on each date specified in Section 6(m), a letter dated such date in form and substance satisfactory to the ManagersManagers and the Forward Purchasers, from Deloitte & Touche KPMG LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight BoardPCAOB, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 under the Securities Act (without reliance on Rule 424(b)(8)) under the Securities Act).
(gh) The Shares and any Confirmation Shares shall have been approved for listing on the ExchangeNYSE, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
(j) The Company shall have entered into a Confirmation with the related Forward Purchaser if it wishes that a Manager, acting as forward seller on behalf of the related Forward Purchaser, offer and sell Shares.
Appears in 1 contract
Samples: Equity Distribution Agreement (Four Corners Property Trust, Inc.)
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager under this Agreement are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in the rating accorded any of the securities of the Company and no proceeding for such purpose or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) pursuant to Section 8A under the Securities ActAct shall be pending before or threatened by the Commission; and
(ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, Statement and the Prospectus and the General Disclosure Package, the effect of which isthat, in the judgment of the ManagersManager’s judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l6(m) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section Sections 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) 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 knowledge of the Company, threatened by the Commission; (iv) the Prospectus Supplement, Supplement and any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package Prospectus did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure PackageManager Information. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m)received, and on such other dates as may be reasonably requested by the Managers, an opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) a certificate of the Company’s chief financial officer with respect to certain financial data contained in the Registration Statement, and on providing “management comfort” with respect to such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such dateinformation, in form and substance reasonably satisfactory to the ManagersManger and its counsel.
(ed) The Managers Manager shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the ManagersManager, a an opinion and negative assurance letter of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the Manager.
(e) The Manager shall have received on each date specified in Section 6(p), and on such other dates as may be reasonably requested by the Manager, an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, counsel for the Manager, dated such date, with respect to such matters as the Manager may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters. The opinion of counsel for the Company described in Section 5(d) above shall be rendered to the Manager at the request of the Company and shall so state therein.
(f) The Manager shall have received on each date specified in Section 6(q), one or more letters dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLP, independent public accountants for the CompanyCompany and any other applicable accounting firm reasonably requested by the Manager, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, as applicable, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, Supplement or the Prospectus or any issuer free writing prospectusProspectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares to be sold shall have been approved for listing on the ExchangeNasdaq, subject only to a official notice of issuance at or prior to the applicable Settlement Dateissuance.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule, unless otherwise agreed to in advance by the Manager in writing.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each Manager hereunder and under any Terms Agreement to which it is a party will be subject, in its discretion, to the condition that all representations and warranties and other statements of the Managers are subject Company herein are, at and as of each Applicable Time, Settlement Date and Representation Date, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) Since The Prospectus and any supplement thereto required by Rule 424 under the later Act shall have been filed with the Commission pursuant to Rule 424 under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 3(a); all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; 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, to the Company’s knowledge, threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been issued or received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Managers’ reasonable satisfaction;
(Ab) Xxxxxx & Xxxxxxx LLP, counsel for the date Managers, shall have furnished to such Manager, on each Representation Date on which the same is to be delivered pursuant to Section 3(n), such written opinion or opinions, dated as of this Agreement such date, in form and substance satisfactory to such Manager, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(Bc) DLA Piper LLP (US), counsel for the immediately preceding Company, or such other counsel acceptable to the Managers, shall have furnished to such Manager, on each Representation Date:Date on which the same is to be delivered pursuant to Section 3(n), a written corporate opinion, tax opinion and letter, dated as of such date, in form and substance satisfactory to such Manager, in the forms set forth in Annex II(a), Annex II(b) and Annex II(c), respectively, hereto;
(d) The general counsel of the Company, or such other counsel acceptable to the Managers, shall have furnished to such Manager, on each Representation Date on which the same is to be delivered pursuant to Section 3(n), a written certificate, dated as of such date, in form and substance satisfactory to such Manager, in the form set forth in Annex III hereto;
(e) On each Representation Date on which the same is to be delivered pursuant to Section 3(n), each of Ernst & Young LLP and any other auditing firm that has certified any financial statements included in the Registration Statement or the Prospectus shall have furnished to such Manager a letter or letters, dated as of such date, in form and substance satisfactory to such Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement or the Disclosure Package in accordance with XX 000, Xxxxxxx Financial Information, and containing other statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters;
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus there shall not have occurred been any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities capital stock or long-term debt of the Company or any of its subsidiaries by or any “nationally recognized statistical rating organization”change, as such term is defined for purposes of Rule 436(g)(2) under or any development involving a prospective change, in or affecting the Securities Act; and
(ii) there shall not have occurred any change in the conditiongeneral affairs, management, financial position, stockholders’ equity or otherwise, or in the earnings, business or results of operations of the Company and its subsidiaries, taken as a whole, from otherwise than as set forth or contemplated in the respective dates of the Registration Statement, the Prospectus and the General Disclosure PackageProspectus, the effect of which iswhich, in the any such case described in clause (i) or (ii), is in such Manager’s judgment of the Managers, so material and adverse as to make it impractical impracticable or inadvisable to market proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.;
(bg) The Managers On or after the date hereof, (i) no downgrading shall have received on each date specified 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 in Section 6(l3(a)(62) a certificate, dated such date and signed by an executive officer of the CompanyExchange Act, to the effect set forth in Section 5(a)(i) and (ii) above and 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;
(h) The Shares have been duly listed, subject to notice of issuance, on the effect that Exchange;
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements of this Agreement or any applicable Terms Agreement; and
(j) The Company shall have furnished or caused to be furnished to such Manager, on each Representation Date on which the same is to be delivered pursuant to Section 3(n), certificates of officers of the Company reasonably satisfactory to such Manager as to the accuracy of the representations and warranties of the Company contained in this Agreement are true herein at and correct as of such date; (ii) , as to the performance by the Company has complied with of all of the agreements and satisfied all of the conditions on its part obligations hereunder to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or, as to the knowledge matters set forth in subsections 6 and (f) of the Company, threatened by the Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) this Section as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement or omission made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m), and on such other dates matters as such Manager may be reasonably requested by the Managers, an opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Actrequest.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter dated such date in form and substance satisfactory to the Managers, from Deloitte & Touche LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(g) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Conditions to the Manager’s Obligations. The obligations of each of the Managers Manager are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
and (ii) there shall not have occurred any change change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesCompany, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the ManagersManager’s sole judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Manager’s reasonable judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and (ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceeding proceedings for that purpose has or pursuant to Section 8A of the Securities Act have been initiated instituted or are pending or, to the knowledge of the Company, threatened are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers Manager shall have received on each date specified in Section 6(m) a certificate of the Secretary of the Company, date such date, as described in Section 6(m), and .
(d) The Manager shall have received on such other dates as may be reasonably requested by the Managers, each date specified in Section 6(m) an opinion and negative assurance letter of XxxxxxThe XxXxxxx Law Firm, Xxxxxxxxxx & Xxxxxxxxx LLPP.C., outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated Manager, which opinion and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The negative assurance letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers Manager at the request of the Company and shall so state therein.
(de) The Managers Manager shall have received on each date specified in Section 6(n) , and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx Faegre Drinker Xxxxxx & Xxxx Xxxxx LLP, counsel for the ManagersManager, dated such date, in form and substance reasonably satisfactory to the ManagersManager.
(ef) The Managers Manager shall have received on each date specified in Section 6(o), and on such other dates as may be reasonably requested by the Managers, a letter letters dated such date in form and substance satisfactory to the ManagersManager, from Deloitte & Touche LLPCompany Auditor, current independent registered public accountants accountant for the Company, (A) confirming that they are as of the date of its respective audit report(s), it was an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, 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 (the first such letterletters from Company Auditor, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(h) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (Golden Matrix Group, Inc.)
Conditions to the Manager’s Obligations. The obligations of each of the Managers are subject to the following conditions:
(a) Since the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(iiiii) there shall not have occurred any change change, or any development involving a prospective change, in the conditionassets, business, condition (financial or otherwise), operations or in the earnings, business or operations earnings of the Company and its subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package, the effect of which isPackage that, in the judgment of the Managers’ judgment, so is material and adverse as to make it impractical or inadvisable and that makes it, in the Managers’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Managers shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section Sections 5(a)(i) and (ii5(a)(ii) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such date; (iii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iiii) 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 knowledge of the Company, threatened by the Commission; (ivi) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (vi) as of such date and as of each Time of Sale, if any, subsequent prior to the immediately preceding Representation Datesuch date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vii) as of such date and as of each Time of Sale, if any, subsequent prior to the immediately preceding Representation Datesuch date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statement statements or omission omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the General Disclosure PackagePackage (it being understood and agreed that such information consists solely of the information specified in Section 8(b)). The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Managers shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of Xxxxxx, Xxxxxxxxxx Xxxx & Xxxxxxxxx Xxxxxxxx LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus;
(ii) the Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Prospectus; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding common stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the knowledge of such counsel, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; to the knowledge of such counsel none of the outstanding shares of common stock of the Subsidiary was issued in violation of the preemptive or similar rights of any security holder of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) none of the issue or sale of the Shares, the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder will (A) conflict with or result in any violation of (1) the Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California or, as to this Agreement, New York, statute or any rule or regulation issued pursuant to any Federal, California or, as to this Agreement, New York statute, including, without limitation, the California Public Utilities Code and California usury laws (“Applicable Laws”), or any order known to such counsel to have been issued pursuant to any Applicable Law by any Federal, California or, as to this Agreement, New York, court or governmental agency or body that such counsel has in the exercise of customary professional diligence recognized as having jurisdiction over the Company or any of its properties (“Applicable Governmental Authority”) or (B) result in a breach or violation of, or constitute a default under, any agreement, indenture or other instrument to which the Company or the Subsidiary is a party that has been filed pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K as exhibits to: (1) the Company’s most recent Annual Report on Form 10-K (the “10-K”), (2) the Company’s Quarterly Reports on Form 10-Q filed for any quarters that ended after the 10-K was filed (each individually a “10-Q”), or (3) to any report on Form 8-K filed by the Company between the end of the most recent quarterly period for which a 10-K or 10-Q has been filed by the Company and the date of such opinion;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the General Disclosure Package and the Prospectus under the captions “Description of Securities,” “Description of Common Stock” and “Plan of Distribution” and (B) the Registration Statement in Item 15, in each case fairly summarize such provisions in all material respects;
(viii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property, of a character required to be disclosed in the Registration Statement other than those disclosed in the Basic Prospectus, any Interim Prospectus Supplement and the Prospectus (in rendering such opinion, such counsel may note that it has not conducted searches of the dockets of any court or administrative agency whatsoever);
(ix) no consent, approval, authorization, filing with or order of or with any Applicable Governmental Authority (a “Governmental Action”) is required for the valid authorization, execution, issuance, sale and delivery of the Shares by the Company except for any Governmental Actions that have been obtained, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Managers in the manner contemplated in this Agreement, the General Disclosure Package and the Prospectus; and
(x) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(xi) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceedings for that purpose have been threatened or instituted by, or are pending before, the Commission; the Registration Statement, as of the Deemed Effective Time, and the Prospectus, as of the date of the Prospectus Supplement and as of the date of such opinion (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules promulgated thereunder; the Prospectus and the Free Writing Prospectus have been filed pursuant to, and within the time frame contemplated by, Rule 424(b) or Rule 433, respectively, promulgated under the Securities Act; The letter from such counsel shall include a separate paragraph to the effect that in the course of its engagement as counsel to the Company in connection with the offering of the Shares, it has participated in conferences with the Managers and their representatives and representatives of the Company and its accountants concerning the Registration Statement, the General Disclosure Package and the Prospectus and considered the matters required to be stated therein and the statements contained therein, and, although they were not engaged to and did not independently verify the accuracy, completeness or fairness of such statements (except as stated above), and based upon and subject to the foregoing, such counsel will advise the Managers, as a matter of fact and not opinion, that nothing came to such counsel’s attention to cause them to believe that (1) the Registration Statement at the Deemed Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Prospectus, as of the date of Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (3) the General Disclosure Package, as of the date of this Agreement and as of each Representation Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that it is understood that such counsel is not requested to and will not express any belief in this paragraph with respect to the financial statements, schedules and other financial data contained in or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. References to the Prospectus in this paragraph shall also include any supplement thereto at the date of such letter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. The opinion of counsel for the Company described in this Section 5(c) shall be rendered to the Managers at the request of the Company and shall so state therein.
(d) The Managers shall have received on each date specified in Section 6(n) the initial Representation Date, and on such other dates as may be reasonably requested by the ManagersManagers in the event there is a change in the California Public Utilities Code that could regulate the issuance of the Shares, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx Nossaman LLP, regulatory counsel for the ManagersCompany, regarding certain regulatory matters, dated such date, in form and substance reasonably satisfactory to the Managers.
(e) The Managers shall have received on each date specified in Section 6(o6(n), and on such other dates as may be reasonably requested by the Managers, an opinion and negative assurance letter of Shearman & Sterling LLP, counsel for the Managers, dated such date, in form and substance reasonably satisfactory to the Managers. The opinions of counsel for the Company described in Section 5(c) and Section 5(d) above shall be rendered to the Managers at the request of the Company and shall so state therein.
(f) The Managers shall have received on each date specified in Section 6(o), a letter dated such date in form and substance reasonably satisfactory to the Managers, from Deloitte & Touche LLP, independent public accountants for the Company, (A) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (BA) stating, as of such date, 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 (the first such letter, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectusprospectus relating to the offer and sale of the Shares, as amended and supplemented to the date of such letter.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to in connection with the offer and sale of the Shares have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(gh) The Shares shall have been approved for listing on the ExchangeNYSE, subject only to a notice of issuance at or prior to the applicable Settlement Date.
(hi) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Appears in 1 contract
Samples: Equity Distribution Agreement (California Water Service Group)
