CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the Firm Shares and any Additional Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company in all material respects of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Securities Act and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the Representative’s Option Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company, shall have furnished to the Representative (i) such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-1 and (ii) a written statement providing certain “10b-5” negative assurances, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative shall have received from Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered public accounting firm with respect to the Company and any Subsidiary within the meaning of the Securities Act and the rules and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriters concurrently with the execution of this Agreement pursuant to paragraph (h) of this Section 6. (i) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, its President or a Vice President and its Vice President, Finance stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the Prospectus, (iii) to the best of their knowledge, as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and correct and the Company has complied in all material respects with all agreements and satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date (or any Option Closing Date if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any Subsidiary, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company or any Subsidiary, except as set forth in the Prospectus. (j) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any Subsidiary 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 in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or long-term debt of the Company nor any Subsidiary (other than stock option and warrant exercises in the ordinary course of business and repayments of existing indebtedness), or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and any Subsidiary, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares and the Representative’s Option on the terms and in the manner contemplated in the General Disclosure Package. (k) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary. (l) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, Applicable Trading Market or the NYSE Amex or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (m) The Applicable Trading Market shall have approved the Shares for inclusion therein to the extent required, subject only to office notice of issuance. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the Underwriters such further information, opinions, comfort letter, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 2 contracts

Samples: Underwriting Agreement (Rosetta Genomics Ltd.), Underwriting Agreement (Rosetta Genomics Ltd.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The ~~respective~~ obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on at the ~~Closing Date~~ Time of Purchase and at any ~~Option Closing Date~~Additional Time of Purchase, as the case may be, of the representations and warranties of the Company contained ~~herein~~herein (except for inaccuracies that would not result in a Material Adverse Effect), to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Company, in all material ~~respects~~ respects, of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, ~~any Preliminary Prospectus,~~ the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge, threatened~~ by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied ~~with to the reasonable satisfaction of the Representative~~with; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the~~ Registration Statement or any amendment or supplement thereto ~~contains~~ shall not contain an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the Representative’s Option Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company, shall have furnished to the Representative (i) such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-1 and (ii) a written statement providing certain “10b-5” negative assurances, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative shall have received from Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered public accounting firm with respect to the Company and any Subsidiary within the meaning of the Securities Act and the rules and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriters concurrently with the execution of this Agreement pursuant to paragraph (h) of this Section 6. (i) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, its President or a Vice President and its Vice President, Finance stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact ~~and did not~~ or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and none of the General Disclosure Package, ~~as of the Applicable Time,~~ any ~~Permitted~~ Issuer Free Writing Prospectus ~~as of its date and as of~~ or the ~~Closing Date (~~Prospectus, or any ~~Option Closing Date if such date is other than the Closing Date), the Prospectus and each~~ amendment or supplement thereto, ~~as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any~~ shall contain an untrue statement of a material fact ~~and did not~~ or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading. (c) Xxxx Xxxxxxxx LLP shall have furnished to the Representatives, on behalf of the Underwriters, such counsel’s written opinion, as counsel to the Company, addressed to the Representatives and dated the Closing Date or the Additional Closing Date, as the case may be, in the form agreed to as of the date hereof. (iid) Xxxxxxxx & Xxxxxxxx LLP shall have furnished to the Representatives, on behalf of the Underwriters, such counsel’s written opinions, as counsel to the Underwriters, addressed to the Representatives and dated the Closing Date or the Additional Closing Date, as the case may be, in the form agreed to as of the date hereof. (e) Deloitte & Touche LLP shall have furnished to the Representatives, on behalf of the Underwriters, a comfort letter, addressed to the Representatives and dated the Closing Date or the Additional Closing Date, as the case may be, in the form agreed to as of the date hereof. (f) The Company shall have furnished to the Representatives, on behalf of the Underwriters, a certificate, dated the Closing Date or the Additional Closing Date, as the case may be, of its Chief Executive Officer and its Chief Financial Officer stating that (i) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the Prospectus, (~~iii~~ii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, except for inaccuracies that would not result in a Material Adverse Effect, and the Company has ~~complied~~ complied, in all material ~~respects~~ respects, with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, or any change or development that, ~~singularly~~ singly or in the aggregate, would reasonably be expected to involve a material adverse change ~~or a prospective material adverse change,~~ in or affecting the condition (financial or otherwise), results of operations, ~~business,~~ business or assets ~~or prospects~~ of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, except as set forth in the Prospectus. (jg) Since the date of the latest audited financial statements with respect to the Company and its Subsidiaries included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its Subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock of the Company or any change in the long-term debt of the Company ~~nor any Subsidiary (other than stock option~~ and ~~warrant exercises in the ordinary course of business and repayments of existing indebtedness)~~its Subsidiaries, taken as a whole, or any ~~change,~~ change or any development ~~involving a prospective change,~~ in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary~~its Subsidiaries, taken as a whole, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this ~~paragraph (i~~Section 6(f), ~~is,~~ would result in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares and the Representative’s Option on the terms and in the manner contemplated in the General Disclosure Packagea Material Adverse Effect. (kh) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~result in a Material Adverse Effect; and no injunction, restraining order or order of any other nature by any United States federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~result in a Material Adverse Effect. (li) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock ~~Exchange, Applicable Trading Market~~ Exchange or the ~~NYSE Amex~~ NASDAQ Stock Market or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a banking moratorium shall have been declared by ~~Federal~~ United States federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, ; (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United ~~States or~~ States; (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the reasonable judgment of the ~~Representative~~Representatives, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus; or (v) the Company shall have received an objection from the NASDAQ Global Select Market with respect to the listing of additional shares notification that it filed with the NASDAQ Global Select Market in connection with the Offering. (mj) The ~~Applicable Trading Market shall have approved the Shares for inclusion therein to the extent required, subject only to office notice of issuance. (n) The Representative~~ Underwriters shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers and directors of the Company listed in on Schedule B C to this Agreement~~. (o) At Closing~~. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives, on behalf of the Underwriters, by notice to the Company ~~shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name~~ at any time on or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior prior to the Closing Date ~~and~~ and, with respect to the Additional Shares, at any ~~Option Closing Date (if such date is other than~~ time on or prior to the applicable Additional Closing Date), the Company shall have furnished to the Underwriters such further information, opinions, comfort letter, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement which termination shall be ~~deemed~~ without liability on the part of any party to any other party, except that Sections 5, 6, 7 and 9 shall at all times be ~~in compliance with the provisions hereof only if they are in form~~ effective and ~~substance reasonably satisfactory to counsel for the Underwriters~~shall survive such termination.

Appears in 2 contracts

Samples: Underwriting Agreement (Kratos Defense & Security Solutions, Inc.), Underwriting Agreement (Kratos Defense & Security Solutions, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The ~~respective~~ obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on at the ~~Closing Date and any Option Closing Date~~Time of Purchase or the Additional Time of Purchase, as the case may be, of the representations and warranties of the Company contained ~~herein~~herein (except for inaccuracies that would not result in a Material Adverse Effect), to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Company, in all material ~~respects~~ respects, of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, ~~any Preliminary Prospectus,~~ the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge, threatened~~ by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied ~~with to the reasonable satisfaction of the Representative~~with; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the~~ Registration Statement or any amendment or supplement thereto ~~contains~~ shall not contain an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the Representative’s Option Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company, shall have furnished to the Representative (i) such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-1 and (ii) a written statement providing certain “10b-5” negative assurances, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative shall have received from Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered public accounting firm with respect to the Company and any Subsidiary within the meaning of the Securities Act and the rules and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriters concurrently with the execution of this Agreement pursuant to paragraph (h) of this Section 6. (i) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, its President or a Vice President and its Vice President, Finance stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact ~~and did not~~ or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and none of the General Disclosure Package, ~~as of the Applicable Time,~~ any ~~Permitted~~ Issuer Free Writing Prospectus ~~as of its date and as of~~ or the ~~Closing Date (~~Prospectus, or any ~~Option Closing Date if such date is other than the Closing Date), the Prospectus and each~~ amendment or supplement thereto, ~~as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any~~ shall contain an untrue statement of a material fact ~~and did not~~ or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading. (c) The Company shall have furnished to the Representative a certificate, dated the Closing Date or the Additional Closing Date, as the case may be, of its Chief Executive Officer and its Chief Financial Officer stating that (iii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the Prospectus, (~~iii~~ii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, except for inaccuracies that would not result in a Material Adverse Effect, and the Company has ~~complied~~ complied, in all material ~~respects~~ respects, with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, or any change or development that, ~~singularly~~ individually or in the aggregate, would reasonably be expected to involve a material adverse change ~~or a prospective material adverse change,~~ in or affecting the condition (financial or otherwise), results of operations, ~~business,~~ business or assets ~~or prospects~~ of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, except as set forth in the Prospectus. (jd) Since the date of the latest audited financial statements with respect to the Company and its Subsidiaries included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its Subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock of the Company or any change in the long-term debt of the Company ~~nor any Subsidiary (other than stock option~~ and ~~warrant exercises in the ordinary course of business and repayments of existing indebtedness)~~its Subsidiaries, taken as a whole, or any ~~change,~~ change or any development ~~involving a prospective change,~~ in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary~~its Subsidiaries, taken as a whole, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this ~~paragraph (i~~Section 6(e), ~~is,~~ would result in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares and the Representative’s Option on the terms and in the manner contemplated in the General Disclosure Packagea Material Adverse Effect. (ke) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~result in a Material Adverse Effect; and no injunction, restraining order or order of any other nature by any United States federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~result in a Material Adverse Effect. (lf) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock ~~Exchange, Applicable Trading Market~~ Exchange or the ~~NYSE Amex~~ NASDAQ Stock Market or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a banking moratorium shall have been declared by ~~Federal~~ United States federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, ; (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United ~~States~~ States; (iv) if there has been, in the judgment of the Representative, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the reasonable judgment of the ~~Representative~~Underwriter, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (m) The Applicable Trading Market shall have approved the Shares for inclusion therein to the extent required, subject only to office notice of issuance. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (pg) The Underwriters shall have received ~~clearance from FINRA~~ an opinion and negative assurance letter of The NBD Group, Inc., counsel for the Company, dated the Closing Date or the Additional Closing Date, as to the ~~amount of compensation allowable or payable to~~ case may be, covering such matters as the Underwriters ~~as described in the Pricing Prospectus~~shall reasonably request. (rh) The ~~Prospectus~~ Underwriters shall have ~~been filed with~~ received the ~~Commission pursuant to Rule 424(b) under~~ favorable opinion of Xxxxx Xxxxxx LLP, counsel for the ~~Act at~~ Underwriters, dated the Closing Date or ~~before 5:30 p.m.~~the Additional Closing Date, ~~Eastern time~~as the case may be, on and covering such matters as the ~~second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act)~~Underwriters shall reasonably request. (si) ~~Prior to~~ The Underwriters shall have received from Xxxxxx LLP letters dated, respectively, the date hereof, the Closing Date ~~and any Option Closing Date (~~and, if ~~such date is other than~~ applicable, the Additional Closing Date), in form and substance satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the General Disclosure Package, the Prospectus and the Registration Statement. (j) The Company shall have furnished to the ~~Underwriters~~ Representative such further ~~information, opinions, comfort letter,~~ certificates ~~(including a Secretary’s Certificate), letters or such other~~ and documents as the Representative may reasonably require for the purpose of enabling the Underwriters to pass upon the issuance and sale of the Shares as herein contemplated. (k) The Company and the Depositary shall have ~~reasonably requested~~executed and delivered the Deposit Agreement and the Depositary Receipts. ~~All opinions, letters, evidence and certificates mentioned above or elsewhere~~ If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated in the absolute discretion of either Representative by notice to the Company at any time on or prior to the Closing Date and, with respect to the Option Shares, at any time on or prior to the applicable Additional Closing Date, which termination shall be ~~deemed~~ without liability on the part of any party to any other party (except to the extent provided in Section 8 hereof), except that Sections 5, 6, 8 and 9 shall at all times be ~~in compliance with the provisions hereof only if they are in form~~ effective and ~~substance reasonably satisfactory to counsel for the Underwriters~~shall survive such termination.

Appears in 2 contracts

Samples: Underwriting Agreement (B. Riley Financial, Inc.), Underwriting Agreement (B. Riley Financial, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the ~~Representative~~Representatives; ~~the Rule 462(b) Registration Statement, if any,~~ each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 of the Securities Act) with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a)~~, and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission~~; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the reasonable opinion of counsel for the Underwriters, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the reasonable opinion of such counsel, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) The Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (cd) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares~~, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities~~, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory ~~in all material respects~~ to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (de) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx~~ Ropes and ~~Pxxxx PC, U.S. counsel to the Company,~~ Xxxx LLP shall have furnished to the ~~Representative (i)~~ Representatives such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing ~~Date~~ Date, and any Option Closing Date (if such date is other than the Closing Date), in form and substance satisfactory to the ~~form attached hereto~~ Representatives. (f) Sterne, Kessler, Xxxxxxxxx & Xxx P.L.L.C. shall have furnished to the Representatives such counsel’s written opinion and negative assurance statement, as ~~Exhibit B-1 and (ii) a written statement providing certain “10b-5” negative assurances~~intellectual property counsel to the Company, addressed to the Underwriters and dated the Closing ~~Date~~ Date, and any Option Closing Date (if such date is other than the Closing Date), in form and substance satisfactory to the ~~form attached hereto as Exhibit B-2~~Representatives. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (fg) The ~~Representative~~ Underwriters shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Xxxxxxx Procter LLP, ~~U.S.~~ counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the ~~Representative~~ Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (gh) At the time of the execution of this Agreement, the ~~Representative~~ Representatives shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the ~~Representative~~ Representatives (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hi) On ~~the effective date of any post-effective amendment to any Registration Statement and on~~ the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the ~~Representative~~ Representatives shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representatives concurrently with the execution of this Agreement pursuant to paragraph (hd) of this Section 6. (ij) The Company shall have furnished to the ~~Representative~~ Representatives a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his or her capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure ~~Package, any Permitted Free Writing Prospectus~~ Package and the Prospectus and, in their opinion, the ~~Registration Statement~~ representations set forth in Section 3(b) and ~~each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact~~ 3(d) hereof are true and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleadingcorrect, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (iii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied in all material respects with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (jk) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor ~~dispute or court or governmental action, order or decree~~dispute, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any material change in the capital stock or short-term or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness)~~its subsidiaries, or any ~~change, or any development involving a prospective change,~~ material adverse change in or affecting the business, general affairs, management, financial position, ~~stockholders~~prospects, shareholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its subsidiaries otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ik), is, in the judgment of the ~~Representative~~Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (kl) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries. (lm) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (ii)(A) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ NASDAQ GSM or the ~~NYSE Amex~~ American Stock Exchange or in the over-the-counter market, or (B) trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the ~~Representative~~Representatives, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (mn) The ~~Applicable Trading Market~~ Company shall have ~~approved~~ filed a Notification: Listing of Additional Shares with the ~~Shares for inclusion therein~~ NASDAQ GSM, if required to do so, and shall have received no objection thereto from the ~~extent required, subject only to office notice of issuance~~NASDAQ GSM. (no) The ~~Representative~~ Representatives shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ parties listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing ~~Date and any Option Closing Date (if such date is other than the Closing~~ Date), the Company shall have furnished to the ~~Underwriters~~ Representatives such ~~further information~~good standing certificates, ~~opinions~~secretary and officers’ certificates, ~~comfort letter, certificates (including a Secretary’s Certificate), letters~~ or such other documents as the ~~Representative~~ Representatives shall have reasonably requested. The several obligations of the Underwriters to purchase Additional Shares, if any, hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of such documents as it may reasonably request with respect to the good standing of the Company, opinions, comfort letters, certificates, letters, documents, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date, and other matters related to the issuance of such Additional Shares. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Equity Underwriting Agreement (Sarepta Therapeutics, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The ~~respective~~ obligations of the several Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on at the ~~Closing Date~~ Time of Purchase and at any ~~Option Closing Date~~Additional Time of Purchase, as the case may be, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, ~~any Preliminary Prospectus,~~ the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the ~~Representative~~Underwriters; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a)) , and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The Underwriters shall not have discovered and disclosed to the Company on or prior to the ~~Closing Date and~~ Time of Purchase or any ~~Option Closing Date~~ Additional Time of Purchase, as the case may be, that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the~~ Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably ~~request to enable them to pass upon such matters~~request. (d) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC~~Paul, ~~U.S. counsel to the Company~~Hastings, Xxxxxxxx & Xxxxxx, LLP shall have furnished to the ~~Representative (i)~~ Underwriters such counsel’s 's written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date ~~and any Option Closing Date (if such date is other than~~ or the Additional Closing Date), as the case may be, in the form ~~attached hereto~~ agreed as ~~Exhibit B-1 and (ii) a written statement providing certain “10b-5” negative assurances, addressed to~~ of the ~~Underwriters and dated the Closing Date and any Option Closing Date (if such~~ date ~~is other than the Closing Date), in the form attached hereto as Exhibit B-2~~hereof. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative shall have received ~~from Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx~~ the opinion of White & ~~Worcester~~ Case LLP, ~~U.S.~~ counsel for the Underwriters, ~~such opinion or opinions and negative assurances statement,~~ dated the Closing Date ~~and any Option Closing Date (if such date is other than~~ or the Additional Closing Date), addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered public accounting firm with respect to the Company and any Subsidiary within the meaning of the Securities Act and the rules and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the ProspectusUnderwriters. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriters concurrently with the execution of this Agreement pursuant to paragraph (h) of this Section 6. (if) The Company shall have furnished to the ~~Representative~~ Underwriters a certificate, dated the Closing Date ~~and any Option Closing Date (if such date is other than~~ or the Additional Closing Date), as the case may be, of its ~~Chairman of the Board, its President or a Vice President~~ Chief Executive Officer and its ~~Vice President, Finance~~ Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the Prospectus, (~~iii~~ii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, the representations and warranties of the Company in this Agreement are true and correct in all material respects, except that any such representation or warranty shall be true and correct in all respects where such representation or warranty is qualified with respect to materiality, and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, and (iviii) there has not been, subsequent to the date of the most recent ~~audited~~ unaudited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, or, to the Company's knowledge, Xxxxxx and its subsidiaries, taken as a whole, or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, ~~business,~~ business or assets ~~or prospects~~ of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, or, to the Company's knowledge, Xxxxxx and its subsidiaries, taken as a whole, except as set forth in the Prospectus. (jg) Since the date of the latest audited financial statements with respect to the Company and its Subsidiaries or Xxxxxx and its subsidiaries, as applicable, included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its Subsidiaries, nor Xxxxxx or any of its subsidiaries, shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or long-term debt of the Company nor any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness),~~ its Subsidiaries or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ ' equity or results of operations of the Company and ~~any Subsidiary~~its Subsidiaries, taken as a whole, or, to the Company's knowledge, Xxxxxx and its subsidiaries, taken as a whole, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ig), is, in the reasonable judgment of the ~~Representative~~Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (h) On the date hereof and on the Closing Date or the Additional Closing Date, as the case may be, Xxxxx Xxxxxxxx LLP, independent public or certified public accountants for each of the Company and Xxxxxx, shall have furnished to the Representative letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type customarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Pricing Prospectus, the General Disclosure Package and any free writing prospectus; provided, that the letter delivered on the Closing Date or the Additional Closing Date, as the case may be, shall use a "cut-off" date no more than three business days prior to such Closing Date. (i) On the date hereof and on the Closing Date or the Additional Closing Date, as the case may be, Xxxxxx LLP, independent public or certified public accountants for Xxxxxx for the years ended August 3, 2008 and August 2, 2009, shall have furnished to the Representative letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type customarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Pricing Prospectus, the General Disclosure Package and any free writing prospectus; provided, that the letter delivered on the Closing Date or the Additional Closing Date, as the case may be, shall use a "cut-off" date no more than three business days prior to such Closing Date. (j) On the date hereof and on the Closing Date or the Additional Closing Date, as the case may be, Xxxxxxxxx Xxxxxxx Xxxxx & Co., independent public or certified public accountants for General Microwave Israel Corp., shall have furnished to the Representative letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type customarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Pricing Prospectus, the General Disclosure Package and any free writing prospectus; provided, that the letter delivered on the Closing Date or the Additional Closing Date, as the case may be, shall use a "cut-off" date no more than three business days prior to such Closing Date. (k) On the date hereof and on the Closing Date or the Additional Closing Date, as the case may be, Xxxxxx & Xxxxx PLLC, independent public or certified public accountants for Gichner Holdings, Inc. and subsidiaries, shall have furnished to the Representative letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type customarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Pricing Prospectus, the General Disclosure Package and any free writing prospectus; provided, that the letter delivered on the Closing Date or the Additional Closing Date, as the case may be, shall use a "cut-off" date no more than three business days prior to such Closing Date. (l) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially~~ materially and adversely affect the business or operations of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole; and no injunction, restraining order or order of any other nature by any United States federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially~~ materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its Subsidiaries, taken as a whole. (lm) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock ~~Exchange, Applicable Trading Market~~ Exchange or the ~~NYSE Amex~~ NASDAQ Stock Market or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a banking moratorium shall have been declared by ~~Federal~~ United States federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, ; (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United ~~States~~ States; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the reasonable judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (mn) The ~~Applicable Trading Market~~ Company shall have ~~approved~~ filed a listing of additional shares notification with the ~~Shares for inclusion therein to~~ NASDAQ Global Select Market in connection with the ~~extent required~~Offering, ~~subject only to office notice of issuance~~and shall have received no objections thereto from the NASDAQ Global Select Market. (no) The ~~Representative~~ Underwriters shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers of the Company listed in Schedule B D to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the ~~Closing Date~~ Time of Purchase and ~~any Option Closing Date (if such date is other than~~ the ~~Closing Date)~~Additional Time of Purchase, as the case may be, the Company shall have furnished to the Underwriters such further information, opinions, ~~comfort letter, certificates (including a Secretary’s Certificate)~~certificates, letters or ~~such other~~ documents as the ~~Representative~~ Underwriters shall have reasonably requested, including a Secretary's Certificate. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice to the Company at any time on or prior to the Closing Date and, with respect to the Additional Shares, at any time on or prior to the applicable Additional Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5, 6, 7 and 9 shall at all times be effective and shall survive such termination.

Appears in 1 contract

Samples: Underwriting Agreement (Kratos Defense & Security Solutions, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the ~~Representative~~Representatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the~~ Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory ~~in all material respects~~ to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx~~ Xxxxxx ~~Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ & Xxxxxxx LLP shall have furnished to the ~~Representative (i)~~ Representatives such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in form and substance reasonably satisfactory to the ~~form attached hereto as Exhibit B-1 and~~ Representatives. (iie) The Company shall have furnished to the Representatives a written ~~statement providing certain “10b-5” negative assurances~~opinion of Xxxxx X. Xxxx, Ph.D., X.X., special counsel for the Company, with respect to intellectual property matters, addressed to the Underwriters ~~and~~ dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in ~~the~~ form ~~attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel~~ and substance reasonably satisfactory to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3Representatives. (f) The ~~Representative~~ Underwriters shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Proskauer Rose LLP, ~~U.S.~~ counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the ~~Representative~~ Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (g) At the time of the execution of this Agreement, the ~~Representative~~ Representatives shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of~~ Ernst & Young ~~Global,~~ LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the ~~Representative~~ Representatives (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its Subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the ~~Representative~~ Representatives shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of~~ Ernst & Young ~~Global,~~ LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representatives concurrently with the execution of this Agreement pursuant to paragraph (hg) of this Section 6. (i) The Company shall have furnished to the ~~Representative~~ Representatives a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its ~~Chairman of the Board,~~ Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (~~iii~~ii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and correct in all material respects (except that any representations and warranties that are already qualified or modified by materiality in the text thereof shall be true and correct in all respects), and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its Subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its Subsidiaries taken as a whole, except as set forth in the Prospectus. (j) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its Subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than (a) Common Stock issued pursuant to the exercise of stock options previously outstanding under the Company’s equity incentive plans, (b) Common Stock issued pursuant to the Company’s employee stock purchase plan, (c) the issuance of options to purchase Common Stock, Common Stock and restricted stock awards under the Company’s equity incentive plans, in each case, such issuance made in the ordinary course of business consistent with past practice of the Company and its Subsidiaries and (d) the agreement to issue of up to 9,000,000 shares of Common Stock to Angiochem under the Angiochem Stock Purchase Agreement) or short-term or long-term debt of the Company ~~nor~~ or any ~~Subsidiary~~ of its Subsidiaries (other than ~~stock option and warrant exercises~~ payments made in the ordinary course of business ~~and repayments~~ in accordance with the terms of ~~existing indebtedness~~such short-term or long-term debt of the Company or its Subsidiaries), or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its Subsidiaries otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ij), is, in the judgment of the ~~Representative~~Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (k) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its Subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its Subsidiaries. (l) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ NASDAQ GM or the ~~NYSE Amex~~ American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the ~~Representative~~Representatives, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (m) The ~~Applicable Trading Market~~ Company shall have ~~approved~~ filed a Notification: Listing of Additional Shares with the ~~Shares for inclusion therein to~~ NASDAQ GM and shall have received no objection thereto from the ~~extent required, subject only to office notice of issuance~~NASDAQ GM. (n) FINRA shall not have raised any objection as to the amount of compensation allowable or payable to the Underwriters as described in the Prospectus. (o) The ~~Representative~~ Representatives shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers and directors of the Company listed in Schedule B to this Agreement~~. (o) At Closing~~, ~~the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which~~ and such lock-up agreements shall be ~~issued~~ in full force and effect on the ~~name or names~~ Closing Date and ~~in such authorized denominations~~ the Option Closing Date, as the ~~Representative~~ case may ~~request~~be. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the ~~Underwriters~~ Representatives such further information, opinions~~, comfort letter~~, certificates (including a Secretary’s Certificate), letters or such other documents as the ~~Representative~~ Representatives shall have reasonably requested. (q) The several obligations of the Underwriters to purchase Additional Shares, if any, hereunder are subject to the delivery to the Representatives on the applicable Closing Date or Option Closing Date, as the case may be, of such documents as it may reasonably request with respect to the good standing of the Company, opinions, comfort letters, certificates, letters, documents, the due authorization and issuance of the Additional Shares to be sold on such Closing Date or Option Closing Date, as the case may be, and other matters related to the issuance of such Additional Shares. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Geron Corp)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The ~~respective~~ obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on at the ~~Closing Date and any Option Closing Date~~Time of Purchase, as the case may be, of the representations and warranties of the Company contained ~~herein~~herein (except for inaccuracies that would not result in a Material Adverse Effect), to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Company, in all material ~~respects~~ respects, of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of ~~any~~ the Base ~~Prospectus, any Preliminary~~ Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge, threatened~~ by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied ~~with to the reasonable satisfaction of the Representative~~with; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the~~ Registration Statement or any amendment or supplement thereto ~~contains~~ shall not contain an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the Representative’s Option Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company, shall have furnished to the Representative (i) such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-1 and (ii) a written statement providing certain “10b-5” negative assurances, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative shall have received from Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered public accounting firm with respect to the Company and any Subsidiary within the meaning of the Securities Act and the rules and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriters concurrently with the execution of this Agreement pursuant to paragraph (h) of this Section 6. (i) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, its President or a Vice President and its Vice President, Finance stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact ~~and did not~~ or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and none of the General Disclosure Package, ~~as of the Applicable Time,~~ any ~~Permitted~~ Issuer Free Writing Prospectus ~~as of its date and as of~~ or the ~~Closing Date (~~Prospectus, or any ~~Option Closing Date if such date is other than the Closing Date), the Prospectus and each~~ amendment or supplement thereto, ~~as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any~~ shall contain an untrue statement of a material fact ~~and did not~~ or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading. (c) The Company shall have furnished to the Representative a certificate, dated the Closing Date or any Option Closing Date, as applicable, of its Chief Executive Officer and its Chief Financial Officer stating that (iii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the Prospectus, (~~iii~~ii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, except for inaccuracies that would not result in a Material Adverse Effect, and the Company has ~~complied~~ complied, in all material ~~respects~~ respects, with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, or any change or development that, ~~singularly~~ individually or in the aggregate, would reasonably be expected to involve a material adverse change ~~or a prospective material adverse change,~~ in or affecting the condition (financial or otherwise), results of operations, ~~business,~~ business or assets ~~or prospects~~ of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, except as set forth in the Prospectus. (jd) Since the date of the latest audited financial statements with respect to the Company and its Subsidiaries included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its Subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock of the Company or any change in the long-term debt of the Company ~~nor any Subsidiary (other than stock option~~ and ~~warrant exercises in the ordinary course of business and repayments of existing indebtedness)~~its Subsidiaries, taken as a whole, or any ~~change,~~ change or any development ~~involving a prospective change,~~ in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary~~its Subsidiaries, taken as a whole, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this ~~paragraph (i~~Section 6(e), ~~is,~~ would result in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares and the Representative’s Option on the terms and in the manner contemplated in the General Disclosure Packagea Material Adverse Effect. (ke) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~result in a Material Adverse Effect; and no injunction, restraining order or order of any other nature by any United States federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~result in a Material Adverse Effect. (lf) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock ~~Exchange, Applicable Trading Market~~ Exchange or the ~~NYSE Amex~~ Nasdaq Stock Market or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a banking moratorium shall have been declared by ~~Federal~~ United States federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, ; (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United ~~States~~ States; (iv) if there has been, in the judgment of the Representative, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the reasonable judgment of the ~~Representative~~Underwriter, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (m) The Applicable Trading Market shall have approved the Shares for inclusion therein to the extent required, subject only to office notice of issuance. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (pg) The Underwriters shall have received ~~clearance from FINRA~~ (i) an opinion and negative assurance letter of Hxxxxxx & Knight LLP, counsel for the Company, and (ii) Polsinelli PC, intellectual property counsel for the Company, dated the Closing Date or any Option Closing Date, as ~~to the amount of compensation allowable or payable to~~ applicable, covering such matters as the Underwriters ~~as described in the Pricing Prospectus~~shall reasonably request. (rh) The ~~Prospectus~~ Underwriters shall have ~~been filed with~~ received the ~~Commission pursuant to Rule 424(b) under~~ favorable opinion of Dxxxx Xxxxxx LLP, counsel for the ~~Act at~~ Underwriters, dated the Closing Date or ~~before 5:30 p.m.~~any Option Closing Date, ~~Eastern time~~as applicable, on and covering such matters as the ~~second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act)~~Underwriters shall reasonably request. (si) ~~Prior~~ The Underwriters shall have received from KMJ Cxxxxx & Company LLP letters dated, respectively, the date hereof, and the Closing Date or any Option Closing Date, as applicable, in form and substance satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the General Disclosure Package, the Prospectus and the Registration Statement. (j) The Underwriters shall have received a written certificate executed by the Chief Financial Officer of the Company, dated the Closing Date or any Option Closing Date, as applicable, and covering such matters as the Underwriters shall reasonably request. (k) On the date hereof and on the Closing Date or any Option Closing Date, as applicable, the Representative shall have received a certificate of the Company’s Chief Financial Officer with respect to certain financial data contained in the Registration Statement, the Pricing Disclosure Package, the Prospectus, and investor presentation providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative. (l) The “lock-up” agreements between the Representative and the shareholders, officers and directors of the Company identified on Schedule D hereto relating to restrictions on sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representative on or before the date hereof, shall be in full force and effect on the Closing Date and any Option Closing ~~Date~~ Date, as applicable. (~~if such date is other than the Closing Date), the~~ m) The Company shall have furnished to the ~~Underwriters~~ Representative such further ~~information, opinions, comfort letter,~~ certificates ~~(including a Secretary’s Certificate), letters or such other~~ and documents as the Representative ~~shall have~~ may reasonably ~~requested~~require for the purpose of enabling the Underwriters to pass upon the issuance and sale of the Shares as herein contemplated. ~~All opinions, letters, evidence and certificates mentioned above or elsewhere~~ If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated in the absolute discretion of the Representative by notice to the Company at any time on or prior to the Closing Date or any Option Closing Date, as applicable, which termination shall be ~~deemed~~ without liability on the part of any party to any other party (except to the extent provided in Section 8 hereof), except that Sections 5, 6, 8 and 9 shall at all times be ~~in compliance with the provisions hereof only if they are in form~~ effective and ~~substance reasonably satisfactory to counsel for the Underwriters~~shall survive such termination.

Appears in 1 contract

Samples: Underwriting Agreement (Harrow Health, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The ~~respective~~ obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on at the ~~Closing Date and any Option Closing Date~~Time of Purchase or the Additional Time of Purchase, as the case may be, of the representations and warranties of the Company contained ~~herein~~herein (except for inaccuracies that would not reasonably be expected to result in a Material Adverse Effect), to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Company, in all material ~~respects~~ respects, of its obligations ~~hereunder~~hereunder (or waiver by the underwriters), and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, ~~any Preliminary Prospectus,~~ the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge, threatened~~ by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied ~~with to the reasonable satisfaction of the Representative~~with; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the~~ Registration Statement or any amendment or supplement thereto ~~contains~~ shall not contain an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the Representative’s Option Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company, shall have furnished to the Representative (i) such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-1 and (ii) a written statement providing certain “10b-5” negative assurances, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative shall have received from Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered public accounting firm with respect to the Company and any Subsidiary within the meaning of the Securities Act and the rules and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriters concurrently with the execution of this Agreement pursuant to paragraph (h) of this Section 6. (i) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, its President or a Vice President and its Vice President, Finance stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact ~~and did not~~ or omit to state a material fact required to be stated therein or necessary to make the statements ~~therein~~ therein, not misleading, and none of the General Disclosure Package, ~~as of the Applicable Time,~~ any ~~Permitted~~ Issuer Free Writing Prospectus ~~as of its date and as of~~ or the ~~Closing Date (~~Prospectus, or any ~~Option Closing Date if such date is other than the Closing Date), the Prospectus and each~~ amendment or supplement thereto, ~~as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any~~ shall contain an untrue statement of a material fact ~~and did not~~ or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading. (c) The Company shall have furnished to the Representative a certificate, dated the Closing Date or the Additional Closing Date, as the case may be, of its Chief Executive Officer and its Chief Financial Officer stating that (iii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus which has not so been disclosed, (~~iii~~ii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, except for inaccuracies that would not reasonably be expected to result in a Material Adverse Effect, and the Company has ~~complied~~ complied, in all material ~~respects~~ respects, with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, or any change or development that, ~~singularly~~ individually or in the aggregate, would reasonably be expected to involve a material adverse change ~~or a prospective material adverse change,~~ in or affecting the condition (financial or otherwise), results of operations, ~~business,~~ business or assets ~~or prospects~~ of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, except as set forth in the Prospectus. (jd) Since the date of the latest audited financial statements with respect to the Company and its Subsidiaries included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its Subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock of the Company or any change in the long-term debt of the Company ~~nor any Subsidiary (other than stock option~~ and ~~warrant exercises in the ordinary course of business and repayments of existing indebtedness)~~its Subsidiaries, taken as a whole, or any ~~change,~~ change or any development ~~involving a prospective change,~~ in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary~~its Subsidiaries, taken as a whole, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this ~~paragraph (i~~Section 6(e), ~~is,~~ would result in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares and the Representative’s Option on the terms and in the manner contemplated in the General Disclosure Packagea Material Adverse Effect. (ke) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body having jurisdiction over the Company which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~reasonably be expected to result in a Material Adverse Effect; and no injunction, restraining order or order of any other nature by any United States federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~reasonably be expected to result in a Material Adverse Effect. (lf) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the ~~New York Stock Exchange, Applicable Trading Market~~ NYSE or the ~~NYSE Amex~~ Nasdaq Stock Market or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a banking moratorium shall have been declared by ~~Federal~~ United States federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, ; (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of ~~a national emergency or~~ war by the United ~~States~~ States; (iv) if there has been, in the judgment of the Representative, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, or (ivv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the reasonable judgment of the ~~Representative~~Underwriter, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (m) The Applicable Trading Market shall have approved the Shares for inclusion therein to the extent required, subject only to office notice of issuance. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (pg) The Underwriters shall have received ~~clearance from FINRA~~ an opinion and negative assurance letter of O’Melveny & Xxxxx LLP, counsel for the Company, dated the Closing Date or the Additional Closing Date, as to the ~~amount of compensation allowable or payable to~~ case may be, covering such matters as the Underwriters ~~as described in the Pricing Prospectus~~shall reasonably request. (rh) The ~~Prospectus~~ Underwriters shall have ~~been filed with~~ received the ~~Commission pursuant to Rule 424(b) under~~ favorable opinion of Xxxxx Xxxxxx LLP, counsel for the ~~Act at~~ Underwriters, dated the Closing Date or ~~before 5:30 p.m.~~the Additional Closing Date, ~~Eastern time~~as the case may be, on and covering such matters as the ~~second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act)~~Underwriters shall reasonably request. (si) ~~Prior to~~ The Underwriters shall have received from Deloitte & Touche LLP letters dated, respectively, the date hereof, the Closing Date and, if applicable, the Additional Closing Date, in form and ~~any Option~~ substance satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the General Disclosure Package, the Prospectus and the Registration Statement. (j) The Underwriters shall have received a certificate of the Chief Financial Officer of the Company, dated the Closing Date ~~(if such date is other than~~ or the Additional Closing Date), as the case may be, and covering such matters as the Underwriters shall reasonably request. (k) The Company shall have furnished to the ~~Underwriters~~ Representative such further ~~information, opinions, comfort letter,~~ certificates ~~(including a Secretary’s Certificate), letters or such other~~ and documents as the Representative ~~shall have~~ may reasonably ~~requested~~require for the purpose of enabling the Underwriters to pass upon the issuance and sale of the Shares as herein contemplated. ~~All opinions, letters, evidence and certificates mentioned above or elsewhere~~ If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated in the absolute discretion of the Representative by notice to the Company at any time on or prior to the Closing Date and, with respect to the Option Shares, at any time on or prior to the applicable Additional Closing Date, which termination shall be ~~deemed~~ without liability on the part of any party to any other party (except to the extent provided in Section 8 hereof), except that Sections 5, 6, 8 and 9 shall at all times be ~~in compliance with the provisions hereof only if they are in form~~ effective and ~~substance reasonably satisfactory to counsel for the Underwriters~~shall survive such termination.

Appears in 1 contract

Samples: Underwriting Agreement (Babcock & Wilcox Enterprises, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representative shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary~~ Additional Shares~~, the Representative’s Option Agreement, the Representative’s Securities~~, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ Xxxxxxxx & Xxxx LLP shall have furnished to the Representative ~~(i)~~ such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in ~~the~~ form ~~attached hereto as Exhibit B-1~~ and ~~(ii) a written statement providing certain “10b-5” negative assurances, addressed~~ substance reasonably satisfactory to the ~~Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2~~Representative. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the The Underwriters ~~and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative~~ shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Proskauer Rose LLP, ~~U.S.~~ counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (gf) At the time of the execution of this Agreement, the Representative shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hg) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representative concurrently with the execution of this Agreement pursuant to paragraph (hg) of this Section 6. (ih) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, at the Applicable Time and as of the ~~applicable effective date,~~ date of this Agreement and as of the Closing Date and any Option Closing Date (if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable ~~Time~~Time and as of the Closing Date and any Option Closing Date (if such date is other than the Closing Date), any Permitted Free Writing Prospectus as of its date and as of the Closing ~~Date (or any Option Closing Date if such date is other than the Closing~~ Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (iii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (ji) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the conversion of convertible indebtedness) or short-term or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness)~~its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its subsidiaries otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (kj) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries. (lk) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ NASDAQ GM or the ~~NYSE Amex~~ American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ GM and shall have received no objection thereto from the NASDAQ GM. (m) The ~~Applicable Trading Market~~ Underwriters shall have ~~approved~~ not have received any unresolved objection from the ~~Shares for inclusion therein~~ FINRA as to the ~~extent required, subject only~~ fairness and reasonableness of the amount of compensation allowable or payable to ~~office notice~~ the Underwriters in connection with the issuance and sale of ~~issuance~~the Shares. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers and directors of the Company listed in Schedule B to this Agreement. (o) ~~At Closing, the Company~~ The Representative shall have ~~delivered~~ received the ~~executed Representative’s Option Agreement~~ written waiver from POSCO Power (“POSCO”) relating to its notice and participation rights arising under and pursuant to the ~~Representative in~~ terms of that certain Securities Purchase Agreement, dated June 9, 2009 between POSCO and the ~~form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request~~Company. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the ~~Underwriters~~ Representative such further information, opinions~~, comfort letter~~, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Fuelcell Energy Inc)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representative shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary~~ Additional Shares~~, the Representative’s Option Agreement, the Representative’s Securities~~, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ Xxxxxxxx & Xxxx LLP shall have furnished to the Representative ~~(i)~~ such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in ~~the~~ form ~~attached hereto as Exhibit B-1~~ and ~~(ii) a written statement providing certain “10b-5” negative assurances, addressed~~ substance reasonably satisfactory to the ~~Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2~~Representative. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the The Underwriters ~~and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative~~ shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Proskauer Rose LLP, ~~U.S.~~ counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (gf) At the time of the execution of this Agreement, the Representative shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hg) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representative concurrently with the execution of this Agreement pursuant to paragraph (hg) of this Section 6. (ih) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, at the Applicable Time and as of the ~~applicable effective date,~~ date of this Agreement and as of the Closing Date and any Option Closing Date (if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable ~~Time~~Time and as of the Closing Date and any Option Closing Date (if such date is other than the Closing Date), any Permitted Free Writing Prospectus as of its date and as of the Closing ~~Date (or any Option Closing Date if such date is other than the Closing~~ Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (iii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (ji) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the conversion of convertible indebtedness) or short-term or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness)~~its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its subsidiaries otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (kj) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries. (lk) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ NASDAQ GM or the ~~NYSE Amex~~ American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ GM and shall have received no objection thereto from the NASDAQ GM. (m) The ~~Applicable Trading Market~~ Underwriters shall have ~~approved~~ not have received any unresolved objection from the ~~Shares for inclusion therein~~ FINRA as to the ~~extent required, subject only~~ fairness and reasonableness of the amount of compensation allowable or payable to ~~office notice~~ the Underwriters in connection with the issuance and sale of ~~issuance~~the Shares. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers and directors of the Company listed in Schedule B to this Agreement. (o) ~~At Closing, the Company~~ The Representative shall have ~~delivered~~ received the ~~executed Representative’s Option Agreement~~ written waiver from POSCO Power (“POSCO”) relating to its notice and participation rights arising under and pursuant to the ~~Representative in~~ terms of that certain Securities Purchase Agreement, dated April 30, 2012 between POSCO and the ~~form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request~~Company. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the ~~Underwriters~~ Representative such further information, opinions~~, comfort letter~~, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Fuelcell Energy Inc)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The ~~respective~~ obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on at the ~~Closing Date and any Option Closing Date~~Time of Purchase or the Additional Time of Purchase, as the case may be, of the representations and warranties of the Company contained ~~herein~~herein (except for inaccuracies that would not reasonably be expected to result in a Material Adverse Effect), to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Company, in all material ~~respects~~ respects, of its obligations ~~hereunder~~hereunder (or waiver by the underwriters), and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, ~~any Preliminary Prospectus,~~ the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge, threatened~~ by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied ~~with to the reasonable satisfaction of the Representative~~with; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the~~ Registration Statement or any amendment or supplement thereto ~~contains~~ shall not contain an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the Representative’s Option Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company, shall have furnished to the Representative (i) such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-1 and (ii) a written statement providing certain “10b-5” negative assurances, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative shall have received from Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered public accounting firm with respect to the Company and any Subsidiary within the meaning of the Securities Act and the rules and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriters concurrently with the execution of this Agreement pursuant to paragraph (h) of this Section 6. (i) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, its President or a Vice President and its Vice President, Finance stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact ~~and did not~~ or omit to state a material fact required to be stated therein or necessary to make the statements ~~therein~~ therein, not misleading, and none of the General Disclosure Package, ~~as of the Applicable Time,~~ any ~~Permitted~~ Issuer Free Writing Prospectus ~~as of its date and as of~~ or the ~~Closing Date (~~Prospectus, or any ~~Option Closing Date if such date is other than the Closing Date), the Prospectus and each~~ amendment or supplement thereto, ~~as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any~~ shall contain an untrue statement of a material fact ~~and did not~~ or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading. (c) The Company shall have furnished to the Representative a certificate, dated the Closing Date or the Additional Closing Date, as the case may be, of its Chief Executive Officer and its Chief Financial Officer stating that (iii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus which has not so been disclosed, (~~iii~~ii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, except for inaccuracies that would not reasonably be expected to result in a Material Adverse Effect, and the Company has ~~complied~~ complied, in all material ~~respects~~ respects, with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, or any change or development that, ~~singularly~~ individually or in the aggregate, would reasonably be expected to involve a material adverse change ~~or a prospective material adverse change,~~ in or affecting the condition (financial or otherwise), results of operations, ~~business,~~ business or assets ~~or prospects~~ of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, except as set forth in the Prospectus. (jd) Since the date of the latest audited financial statements with respect to the Company and its Subsidiaries included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its Subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock of the Company or any change in the long-term debt of the Company ~~nor any Subsidiary (other than stock option~~ and ~~warrant exercises in the ordinary course of business and repayments of existing indebtedness)~~its Subsidiaries, taken as a whole, or any ~~change,~~ change or any development ~~involving a prospective change,~~ in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary~~its Subsidiaries, taken as a whole, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this ~~paragraph (i~~Section 6(e), ~~is,~~ would result in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares and the Representative’s Option on the terms and in the manner contemplated in the General Disclosure Packagea Material Adverse Effect. (ke) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body having jurisdiction over the Company which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~reasonably be expected to result in a Material Adverse Effect; and no injunction, restraining order or order of any other nature by any United States federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~reasonably be expected to result in a Material Adverse Effect. (lf) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the ~~New York Stock Exchange, Applicable Trading Market~~ NYSE or the ~~NYSE Amex~~ Nasdaq Stock Market or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a banking moratorium shall have been declared by ~~Federal~~ United States federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, ; (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of ~~a national emergency or~~ war by the United ~~States~~ States; (iv) if there has been, in the judgment of the Representative, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, or (ivv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the reasonable judgment of the ~~Representative~~Underwriter, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (m) The Applicable Trading Market shall have approved the Shares for inclusion therein to the extent required, subject only to office notice of issuance. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (pg) The Underwriters shall have received ~~clearance from FINRA~~ an opinion and negative assurance letter of O’Melveny & Mxxxx LLP, counsel for the Company, dated the Closing Date or the Additional Closing Date, as to the ~~amount of compensation allowable or payable to~~ case may be, covering such matters as the Underwriters ~~as described in the Pricing Prospectus~~shall reasonably request. (rh) The ~~Prospectus~~ Underwriters shall have ~~been filed with~~ received the ~~Commission pursuant to Rule 424(b) under~~ favorable opinion of Dxxxx Xxxxxx LLP, counsel for the ~~Act at~~ Underwriters, dated the Closing Date or ~~before 5:30 p.m.~~the Additional Closing Date, ~~Eastern time~~as the case may be, on and covering such matters as the ~~second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act)~~Underwriters shall reasonably request. (si) ~~Prior to~~ The Underwriters shall have received from Deloitte & Touche LLP letters dated, respectively, the date hereof, the Closing Date and, if applicable, the Additional Closing Date, in form and ~~any Option~~ substance satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the General Disclosure Package, the Prospectus and the Registration Statement. (j) The Underwriters shall have received a certificate of the Chief Financial Officer of the Company, dated the Closing Date or the Additional Closing Date, as the case may be, and covering such matters as the Underwriters shall reasonably request. (~~if such~~ k) The “lock-up” agreements, each substantially in the form of Schedule D hereto, between the Representative and certain stockholders, officers and directors of the Company listed on Schedule E hereto, relating to restrictions on sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representative on or before the date ~~is other than~~ hereof, shall be in full force and effect on the Closing Date~~), the~~ . (l) The Company shall have furnished to the ~~Underwriters~~ Representative such further ~~information, opinions, comfort letter,~~ certificates ~~(including a Secretary’s Certificate), letters or such other~~ and documents as the Representative ~~shall have~~ may reasonably ~~requested~~require for the purpose of enabling the Underwriters to pass upon the issuance and sale of the Shares as herein contemplated. ~~All opinions, letters, evidence and certificates mentioned above or elsewhere~~ If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated in the absolute discretion of the Representative by notice to the Company at any time on or prior to the Closing Date and, with respect to the Option Shares, at any time on or prior to the applicable Additional Closing Date, which termination shall be ~~deemed~~ without liability on the part of any party to any other party (except to the extent provided in Section 8 hereof), except that Sections 5, 6, 8 and 9 shall at all times be ~~in compliance with the provisions hereof only if they are in form~~ effective and ~~substance reasonably satisfactory to counsel for the Underwriters~~shall survive such termination.

Appears in 1 contract

Samples: Underwriting Agreement (Babcock & Wilcox Enterprises, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representative shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the~~ Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ Xxxxxxxx & Xxxx LLP shall have furnished to the Representative ~~(i)~~ such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in ~~the~~ form ~~attached hereto as Exhibit B-1~~ and ~~(ii) a written statement providing certain “10b-5” negative assurances, addressed~~ substance reasonably satisfactory to the ~~Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2~~Representative. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the The Underwriters ~~and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative~~ shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Proskauer Rose LLP, ~~U.S.~~ counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (gf) At the time of the execution of this Agreement, the Representative shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hg) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representative concurrently with the execution of this Agreement pursuant to paragraph (hg) of this Section 6. (ih) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, at the Applicable Time and as of the ~~applicable effective date,~~ date of this Agreement and as of the Closing Date and any Option Closing Date (if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable ~~Time~~Time and as of the Closing Date and any Option Closing Date (if such date is other than the Closing Date), any Permitted Free Writing Prospectus as of its date and as of the Closing ~~Date (or any Option Closing Date if such date is other than the Closing~~ Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (iii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (ji) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the conversion of convertible indebtedness) or short-term or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness)~~its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its subsidiaries otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (kj) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries. (lk) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ NASDAQ GM or the ~~NYSE Amex~~ American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ GM and shall have received no objection thereto from the NASDAQ GM. (m) The ~~Applicable Trading Market~~ Underwriters shall have ~~approved~~ not have received any unresolved objection from the ~~Shares for inclusion therein~~ FINRA as to the ~~extent required, subject only~~ fairness and reasonableness of the amount of compensation allowable or payable to ~~office notice~~ the Underwriters in connection with the issuance and sale of ~~issuance~~the Shares. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers and directors of the Company listed in Schedule B to this Agreement. (o) ~~At Closing, the Company~~ The Representative shall have ~~delivered~~ received the ~~executed Representative’s Option Agreement~~ written waiver from POSCO Power (“POSCO”) relating to its notice and participation rights arising under and pursuant to the ~~Representative in~~ terms of that certain Securities Purchase Agreement, dated June 9, 2009 between POSCO and the ~~form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request~~Company. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the ~~Underwriters~~ Representative such further information, opinions~~, comfort letter~~, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Fuelcell Energy Inc)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the Firm ~~Shares~~ Units and any Additional ~~Shares~~Units, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any ~~Base~~ Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, ~~in the opinion of such counsel,~~ is material or omits to state any fact which~~, in the opinion of such counsel~~, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the ~~Shares~~Units, the ~~Ordinary Shares~~Common Stock, the Representative’s ~~Option Agreement~~Option, the Representative’s Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the Representative’s Option ~~Agreement~~ and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ SNR Dxxxxx LLP shall have furnished to the Representative ~~(i)~~ such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit ~~B-1 and (ii)~~ B. SNR Dxxxxx LLP shall also have furnished to the Representative a written statement providing certain “10b-5” negative assurances, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit ~~B-2.~~B. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative shall have received from Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global~~Cacciamatta Accountancy Corporation, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered public accounting firm with respect to the Company and any Subsidiary within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hf) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ Cacciamatta Accountancy Corporation addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriters concurrently with the execution of this Agreement pursuant to paragraph (hi) of this Section 6. (ig) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, its President or a Vice President and its Vice President, Finance solely in their capacities as officers of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the ~~applicable effective date,~~ Applicable Time and as of the date of this Agreement and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable ~~Time~~Time and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing ~~Date (or any Option Closing Date if such date is other than the Closing~~ Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the Prospectus, (iii) to the best of their knowledge, as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and correct and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date (or any Option Closing Date if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any Subsidiary, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company or any Subsidiary, except as set forth in the Prospectus. (jh) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any Subsidiary 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 in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or long-term debt of the Company nor any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course of business and repayments of existing indebtedness)~~Subsidiary, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and any Subsidiary, otherwise than as set forth in the Registration Statement, the Prospectus or the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ik), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the ~~Shares~~ Units and the Representative’s Option on the terms and in the manner contemplated in the General Disclosure Package. (ki) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the ~~Shares~~ Units or the Representative’s Securities or ~~materially and adversely affect or potentially~~ materially and adversely affect the business or operations of the Company or any Subsidiary; taken as a whole, and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the ~~Shares~~ Units or the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary. (lj) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, Applicable Trading Market or the NYSE Amex or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the ~~Shares~~ Units on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (mk) The Applicable Trading Market shall have approved the ~~Shares~~ Units for inclusion therein to the extent required, subject only to ~~office~~ official notice of issuance. (nl) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons listed in Schedule B to this Agreement. (om) At Closing, the Company shall have delivered the executed the Representative’s Option ~~Agreement~~ to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (pn) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (ro) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the transactions contemplated hereby, including as an exhibit thereto this Agreement and any other documents relating thereto. (p) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (sq) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the Underwriters such further information, opinions, comfort letter, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (CNS Response, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the ~~Representative~~Representatives; ~~the Rule 462(b) Registration Statement, if any,~~ each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a)~~, and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission~~; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the~~ Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory ~~in all material respects~~ to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx~~ Xxxxxx ~~Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ & Xxxxxxx LLP. shall have furnished to the ~~Representative (i)~~ Representatives such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing ~~Date~~ Date, and any Option Closing Date (if such date is other than the Closing Date), in form and substance satisfactory to the ~~form attached hereto as Exhibit B-1 and~~ Representatives. (iie) a White Xxxxxxx Xxxxxx & Xxxxx, LLP, the Company’s Oregon counsel, shall have furnished to the Representatives such counsel’s written ~~statement providing certain “10b-5” negative assurances~~opinion, addressed to the Underwriters and dated the Closing ~~Date~~ Date, and any Option Closing Date (if such date is other than the Closing Date), in ~~the~~ form ~~attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel~~ and substance satisfactory to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3Representatives. (f) The ~~Representative~~ Underwriters shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Proskauer Rose LLP, ~~U.S.~~ counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the ~~Representative~~ Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (g) At the time of the execution of this Agreement, the ~~Representative~~ Representatives shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the ~~Representative~~ Representatives (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the ~~Representative~~ Representatives shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representatives concurrently with the execution of this Agreement pursuant to paragraph (hg) of this Section 6. (i) The Company shall have furnished to the ~~Representative~~ Representatives a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his or her capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, at the Applicable Time and as of the ~~applicable effective date,~~ date of this Agreement and as of the Closing Date and any Option Closing Date (if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable ~~Time~~Time and as of the Closing Date and any Option Closing Date (if such date is other than the Closing Date), any Permitted Free Writing Prospectus as of its date and as of the Closing ~~Date (or any Option Closing Date if such date is other than the Closing~~ Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (iii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied in all material respects with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (j) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor ~~dispute or court or governmental action, order or decree~~dispute, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or short-term or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness)~~its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, ~~stockholders~~shareholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its subsidiaries otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ij), is, in the judgment of the ~~Representative~~Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (k) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries. (l) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (ii)(A) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ NASDAQ GM or the ~~NYSE Amex~~ American Stock Exchange or in the over-the-counter market, or (B) trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the ~~Representative~~Representatives, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (m) The ~~Applicable Trading Market~~ Company shall have ~~approved~~ filed a Notification: Listing of Additional Shares with the ~~Shares for inclusion therein to~~ NASDAQ GM and shall have received no objection thereto from the ~~extent required, subject only to office notice of issuance~~NASDAQ GM. (n) The ~~Representative~~ Representatives shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers and directors of the Company listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (sq) Prior to the Closing ~~Date and any Option Closing Date (if such date is other than the Closing~~ Date), the Company shall have furnished to the ~~Underwriters~~ Representatives such ~~further information~~good standing certificates, ~~opinions~~secretary and officers’ certificates, ~~comfort letter, certificates (including a Secretary’s Certificate), letters~~ or such other documents as the ~~Representative~~ Representatives shall have reasonably requested. The several obligations of the Underwriters to purchase Additional Shares, if any, hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of such documents as it may reasonably request with respect to the good standing of the Company, opinions, comfort letters, certificates, letters, documents, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date, and other matters related to the issuance of such Additional Shares. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Sarepta Therapeutics, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the ~~Representative~~Representatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the~~ Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx~~ Xxxxxxxxx Xxxxxxx Xxxxxx ~~Gxxxxxx and Pxxxx PC~~Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, ~~U.S. counsel to the Company,~~ LLP shall have furnished to the ~~Representative (i)~~ Representatives such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing Date, and any Option Closing Date (if such date is other than the Closing Date), in form and substance reasonably satisfactory to the Representatives. (e) Xxxxxxx Xxxxxxx, intellectual property counsel to the Company, shall have furnished to the Representatives such counsel’s written opinion, with respect to intellectual property matters, addressed to the Underwriters dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in ~~the~~ form ~~attached hereto as Exhibit B-1~~ and ~~(ii) a written statement providing certain “10b-5” negative assurances, addressed~~ substance reasonably satisfactory to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3Representatives. (f) The ~~Representative~~ Underwriters shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Proskauer Rose LLP, ~~U.S.~~ counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the ~~Representative~~ Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (g) At the time of the execution of this Agreement, the ~~Representative~~ Representatives shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ PricewaterhouseCoopers LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance reasonably satisfactory to the ~~Representative~~ Representatives (iA) confirming that ~~they are~~ such firm is an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the ~~Representative~~ Representatives shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ PricewaterhouseCoopers LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representatives concurrently with the execution of this Agreement pursuant to paragraph (hg) of this Section 6. (i) The Company shall have furnished to the ~~Representative~~ Representatives a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (~~iii~~ii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality in the text thereof and such representations and warranties shall be true and correct in all respects), and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse ~~change,~~ change in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (j) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or short-term or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness)~~its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its subsidiaries otherwise than as set forth in the General Disclosure ~~Package~~Package or as a result of the exercise of securities in connection with any benefit plan or similar plan, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ij), is, in the judgment of the ~~Representative~~Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (k) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries. (l) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock ~~Exchange, Applicable Trading Market~~ Exchange or the ~~NYSE Amex~~ Nasdaq Global Market or in the over-the-counter market, or trading in any securities of the Company on any ~~exchange or in the over-the-counter market~~exchange, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the ~~Representative~~Representatives, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (m) The ~~Applicable Trading Market~~ Company shall have ~~approved~~ filed a Notification: Listing of Additional Shares with the ~~Shares for inclusion therein to~~ Nasdaq Global Market and shall have received no objection thereto from the ~~extent required, subject only to office notice of issuance~~Nasdaq Global Market. (n) FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (o) The ~~Representative~~ Representatives shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers and directors of the Company listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing ~~Date and any Option Closing Date (if such date is other than the Closing~~ Date), the Company shall have furnished to the ~~Underwriters~~ Representatives such further information, documents with respect to the good standing of the Company, opinions~~, comfort letter~~, certificates (including a Secretary’s Certificate), letters or such other documents as the ~~Representative~~ Representatives shall have reasonably requested. The several obligations of the Underwriters to purchase Additional Shares, if any, hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of such documents as they may reasonably request with respect to the good standing of the Company, opinions, comfort letters, certificates, letters, documents, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date, and other matters related to the issuance of such Additional Shares. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Vanda Pharmaceuticals Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the ~~Representative~~Representatives; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the~~ Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory ~~in all material respects~~ to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx~~ Schuchat, Xxxxxx ~~Gxxxxxx and Pxxxx PC~~& Xxxxxxx, ~~U.S. counsel to the Company,~~ LLC shall have furnished to the ~~Representative (i)~~ Representatives such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing ~~Date~~ Date, and any Option Closing Date (if such date is other than the Closing Date), in ~~the~~ form ~~attached hereto as Exhibit B-1~~ and ~~(ii) a written statement providing certain “10b-5” negative assurances, addressed~~ substance reasonably satisfactory to the ~~Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2~~Representatives. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the The Underwriters ~~and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative~~ shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Proskauer Rose LLP, ~~U.S.~~ counsel for the Underwriters, such written opinion ~~or opinions~~ and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the ~~Representative~~ Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (gf) At the time of the execution of this Agreement, the ~~Representative~~ Representatives shall have received from ~~Kxxx Fxxxx Gxxxxx~~ Xxxxxxxx Xxxxx Xxxxxxx & ~~Kasierer, a member of Ernst & Young Global,~~ Xxxxxxx PC a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the ~~Representative~~ Representatives (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hg) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the ~~Representative~~ Representatives shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx~~ Xxxxxxxx Xxxxx Xxxxxxx & ~~Kasierer, a member of Ernst & Young Global,~~ Xxxxxxx PC addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representatives concurrently with the execution of this Agreement pursuant to paragraph (hg) of this Section 6. (ih) The Company shall have furnished to the ~~Representative~~ Representatives a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its ~~Chairman~~ Chief Executive Officer and its Chief Financial Officer, each in his capacity as an officer of the ~~Board~~Company, ~~its President or a Vice President and its Vice President, Finance~~ stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, at the Applicable Time and as of the ~~applicable effective date,~~ date of this Agreement and as of the Closing Date and any Option Closing Date (if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable ~~Time~~Time and as of the Closing Date and any Option Closing Date (if such date is other than the Closing Date), any Permitted Free Writing Prospectus as of its date and as of the Closing ~~Date (or any Option Closing Date if such date is other than the Closing~~ Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (iii) to ~~the best of~~ their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and correct in all material respects, except that any such representation or warranty shall be true and correct in all respects where such representation and warranty is qualified with respect to materiality, and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary~~and its subsidiaries, taken as a whole, or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (ji) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or short-term or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness)~~its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary~~its subsidiaries, taken as a whole, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i), is, in the judgment of the ~~Representative~~Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (kj) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries, taken as a whole, and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries, taken as a whole. (lk) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ NASDAQ CM or the ~~NYSE Amex~~ American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the ~~Representative~~Representatives, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ CM and shall have received no objection thereto from the NASDAQ CM. (m) The ~~Applicable Trading Market shall have approved the Shares for inclusion therein to the extent required, subject only to office notice of issuance. (n) The Representative~~ Representatives shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers and directors of the Company listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (sn) Prior to the Closing ~~Date~~ Date, and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the ~~Underwriters~~ Representatives such further information, good standing of the Company, opinions, comfort ~~letter~~letters, certificates (including a Secretary’s Certificate), letters or such other documents as the ~~Representative~~ Representatives shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Ada-Es Inc)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm~~ Shares and ~~any Additional Shares~~Warrants, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representative shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities~~Warrants, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory ~~in all material respects~~ to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx~~ Xxxxxx ~~Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ LLP shall have furnished to the Representative ~~(i)~~ such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing Date, and any Option Closing Date (if such date is other than the Closing Date), in form and substance reasonably satisfactory to the Representative. (e) Fish & Xxxxxxxxxx P.C., the Company’s intellectual property counsel shall have furnished to the Representative, such counsel’s written opinion, with respect to intellectual property matters, addressed to the Underwriters dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in ~~the~~ form ~~attached hereto as Exhibit B-1~~ and ~~(ii) a written statement providing certain “10b-5” negative assurances, addressed~~ substance reasonably satisfactory to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3Representative. (f) The ~~Representative~~ Underwriters shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Proskauer Rose LLP, ~~U.S.~~ counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date)~~, addressed to the Underwriters~~, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer,~~ Xxxxxx LLP a ~~member~~ letter (or such number of ~~Ernst & Young Global, a letter~~letters as may be needed to cover the period for financial statements for the period of 2009 through 2012), addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company ~~and any Subsidiary~~ within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (or such number of letters as may be needed to cover the period for financial statements for the period of 2009 through 2012, the “Bring-Down ~~Letter~~Letter(s)”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ Xxxxxx LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down ~~Letter~~ Letter(s) (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down ~~Letter~~Letter(s)), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representative concurrently with the execution of this Agreement pursuant to paragraph (hg) of this Section 6. (i) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, at the Applicable Time and as of the ~~applicable effective date,~~ date of this Agreement and as of the Closing Date and any Option Closing Date (if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable ~~Time~~Time and as of the Closing Date and any Option Closing Date (if such date is other than the Closing Date), any Permitted Free Writing Prospectus as of its date and as of the Closing ~~Date (or any Option Closing Date if such date is other than the Closing~~ Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (iii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any ~~Subsidiary, or any~~ change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change ~~or a prospective material adverse change,~~ in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the ~~Company or any Subsidiary~~Company, except as set forth in the Prospectus. (j) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) ~~neither~~ the Company ~~nor any Subsidiary~~ shall not have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or short-term or long-term debt of the ~~Company nor any Subsidiary (other than stock option and warrant exercises in the ordinary course of business and repayments of existing indebtedness)~~Company, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company ~~and any Subsidiary,~~ otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ij), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ or Warrants on the terms and in the manner contemplated in the General Disclosure Package. (k) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares ~~or the Representative’s Securities~~ and Warrants or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company ~~or any Subsidiary;~~ and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares ~~or the Representative’s Securities~~ and Warrants or materially and adversely affect or potentially materially and adversely affect the business or operations of the ~~Company or any Subsidiary~~Company. (l) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ NYSE MKT or the ~~NYSE Amex~~ NASDAQ Stock Market or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares and Warrants on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (m) The ~~Applicable Trading Market~~ Company shall have ~~approved~~ filed a notification for the ~~Shares for inclusion therein to~~ listing of additional shares of Common Stock with the ~~extent required, subject only to office notice of issuance~~NYSE MKT and shall have received no objection thereto from the NYSE MKT. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A B hereto, of the ~~persons~~ executive officers and directors of the Company listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (sq) Prior to the Closing ~~Date and any Option Closing Date (if such date is other than the Closing~~ Date), the Company shall have furnished to the ~~Underwriters~~ Representative such further information, good standing of the Company, opinions~~, comfort letter~~, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. (o) The several obligations of the Underwriters to purchase Additional Securities, if any, hereunder are subject to the delivery to the Representative on the applicable Option Closing Date of such documents as it may reasonably request with respect to the good standing of the Company, opinions, comfort letters, certificates, letters, documents, the due authorization and issuance of the Additional Securities to be sold on such Option Closing Date, and other matters related to the issuance of such Additional Securities. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (ImmunoCellular Therapeutics, Ltd.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the ~~Representative~~Representatives; ~~the Rule 462(b) Registration Statement, if any,~~ each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 of the Securities Act) with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a)~~, and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission~~; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the reasonable opinion of counsel for the Underwriters, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the reasonable opinion of such counsel, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) [Reserved] (d) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares~~, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities~~, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory ~~in all material respects~~ to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (de) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx~~ Ropes and ~~Pxxxx PC, U.S. counsel to the Company,~~ Xxxx LLP shall have furnished to the ~~Representative (i)~~ Representatives such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing ~~Date~~ Date, and any Option Closing Date (if such date is other than the Closing Date), in form and substance satisfactory to the ~~form attached hereto~~ Representatives. (f) Sterne, Kessler, Xxxxxxxxx & Xxx P.L.L.C. shall have furnished to the Representatives such counsel’s written opinion and negative assurance statement, as ~~Exhibit B-1 and (ii) a written statement providing certain “10b-5” negative assurances~~intellectual property counsel to the Company, addressed to the Underwriters and dated the Closing ~~Date~~ Date, and any Option Closing Date (if such date is other than the Closing Date), in form and substance satisfactory to the ~~form attached hereto as Exhibit B-2~~Representatives. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (fg) The ~~Representative~~ Underwriters shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Xxxxxxx Procter LLP, ~~U.S.~~ counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the ~~Representative~~ Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (gh) At the time of the execution of this Agreement, the ~~Representative~~ Representatives shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the ~~Representative~~ Representatives (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hi) On ~~the effective date of any post-effective amendment to any Registration Statement and on~~ the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the ~~Representative~~ Representatives shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representatives concurrently with the execution of this Agreement pursuant to paragraph (hd) of this Section 6. (ij) The Company shall have furnished to the ~~Representative~~ Representatives a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his or her capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure ~~Package, any Permitted Free Writing Prospectus~~ Package and the Prospectus and, in their opinion, the ~~Registration Statement~~ representations set forth in Section 3(b) and ~~each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact~~ 3(d) hereof are true and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleadingcorrect, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (iii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied in all material respects with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (jk) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor ~~dispute or court or governmental action, order or decree~~dispute, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any material change in the capital stock or short-term or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness)~~its subsidiaries, or any ~~change, or any development involving a prospective change,~~ material adverse change in or affecting the business, general affairs, management, financial position, ~~stockholders~~prospects, shareholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its subsidiaries otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ik), is, in the judgment of the ~~Representative~~Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (kl) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries. (lm) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (ii)(A) trading in securities generally on the New York Stock ~~Exchange, Applicable Trading Market~~ Exchange or the ~~NYSE Amex or in the over-the-counter market~~Nasdaq GSM, or (B) trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the ~~Representative~~Representatives, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (mn) The ~~Applicable Trading Market~~ Company shall have ~~approved~~ filed a Notification: Listing of Additional Shares with the ~~Shares for inclusion therein~~ Nasdaq GSM, if required to do so, and shall have received no objection thereto from the ~~extent required, subject only to office notice of issuance~~Nasdaq GSM. (no) The ~~Representative~~ Representatives shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ parties listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing ~~Date and any Option Closing Date (if such date is other than the Closing~~ Date), the Company shall have furnished to the ~~Underwriters~~ Representatives such ~~further information~~good standing certificates, ~~opinions~~secretary and officers’ certificates, ~~comfort letter, certificates (including a Secretary’s Certificate), letters~~ or such other documents as the ~~Representative~~ Representatives shall have reasonably requested. The several obligations of the Underwriters to purchase Additional Shares, if any, hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of such documents as it may reasonably request with respect to the good standing of the Company, opinions, comfort letters, certificates, letters, documents, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date, and other matters related to the issuance of such Additional Shares. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Equity Underwriting Agreement (Sarepta Therapeutics, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representative shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the~~ Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory ~~in all material respects~~ to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx~~ Xxxxxx ~~Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ & Xxxxxxx LLP shall have furnished to the Representative ~~(i)~~ such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), substantially in the form ~~attached hereto as~~ of and covering the matters referred to in Exhibit ~~B-1 and~~ B hereof. (iie) a Xxxxxx & Xxxxxxx LLP, the Company’s regulatory counsel shall have furnished to the Representative, such counsel’s written ~~statement providing certain “10b-5” negative assurances~~opinion, with respect to intellectual property matters, addressed to the Underwriters ~~and~~ dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), substantially in the form ~~attached hereto as~~ of and covering the matters referred to in Exhibit ~~B-2~~C hereof. (ef) ~~Raved Magriso Benkel~~ Xxxxxxxx & ~~Co.~~Xxxxxxxx LLP, ~~Israeli counsel to~~ the Company, ’s intellectual property counsel shall have furnished to the ~~Representative~~ Representative, such counsel’s written opinion, ~~including a written statement providing certain “10b-5” negative assurances, as counsel~~ with respect to ~~the Company~~intellectual property matters, addressed to the Underwriters ~~and~~ dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), substantially in the form ~~attached hereto as~~ of and covering the matters referred to in Exhibit ~~B-3~~D hereof. (fg) The ~~Representative~~ Underwriters shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Proskauer Rose LLP, ~~U.S.~~ counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (gh) At the time of the execution of this Agreement, the Representative shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ PricewaterhouseCoopers LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative and PricewaterhouseCoopers (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiary within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hi) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ PricewaterhouseCoopers LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representative concurrently with the execution of this Agreement pursuant to paragraph (h) of this Section 6. (ij) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his or her capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the ~~effective~~ date of the ~~Registration Statement~~prospectus supplement relating to this Offering, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (~~iii~~ii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof and such representation and warranties shall be true and correct in all respects), and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (jk) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor ~~any Subsidiary~~ its subsidiary 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 in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than the issuance of (a) Common Stock of the Company issued pursuant to the exercise of stock options previously outstanding under the Company’s equity incentive plans, (b) Common Stock of the Company issued pursuant to the Company’s employee stock purchase plan, (c) the issuance of options, restricted Common Stock, restricted stock units, or stock appreciation rights under the Company’s equity incentive plans, in each case, such issuance made in the ordinary course of business consistent with past practice of the Company and its subsidiary or (d) Common Stock prior to the date of this Agreement pursuant to that certain Common Stock Purchase Agreement, dated November 11, 2009, by and between Azimuth Opportunity Ltd and the Company) or short-term or long-term debt of the Company ~~nor any Subsidiary~~ or its subsidiary (other than ~~stock option and warrant exercises~~ payments in the ordinary course of business in accordance with the terms of such short-term and ~~repayments~~ long-term debt of ~~existing indebtedness~~the Company or its subsidiary), or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its subsidiary otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ik), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (kl) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiary. (lm) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ NASDAQ GM or the ~~NYSE Amex~~ American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (~~m) The Applicable Trading Market shall have approved the Shares for inclusion therein to the extent required, subject only to office notice of issuance. (~~n) The ~~Representative~~ Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ GM and shall have received no objection thereto from the ~~written agreements, substantially in the form of Exhibit A hereto, of the persons listed in Schedule B to this Agreement~~NASDAQ GM. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the ~~Pricing~~ Prospectus. (rp) The ~~Prospectus~~ Representative shall have ~~been filed with~~ received the ~~Commission pursuant~~ written agreements, substantially in the form of Exhibit A hereto, of the executive officers, directors and those shareholders of the Company listed in Schedule B to ~~Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of~~ this ~~Agreement (or such earlier time as may be required under the Securities Act)~~Agreement. (sq) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the ~~Underwriters~~ Representative such further information~~, opinions, comfort letter~~, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. (r) The several obligations of the Underwriters to purchase Additional Shares, if any, hereunder are subject to the delivery to the Representative on the applicable Closing Date or Option Closing Date, as the case may be, of such documents as it may reasonably request with respect to the good standing of the Company, opinions, comfort letters, certificates, letters, documents, the due authorization and issuance of the Additional Shares to be sold on such Closing Date or Option Closing Date, as the case may be, and other matters related to the issuance of such Additional Shares. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (MAP Pharmaceuticals, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the ~~Representative~~Representatives; ~~the Rule 462(b) Registration Statement, if any,~~ each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 of the Securities Act) with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a)~~, and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission~~; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the reasonable opinion of counsel for the Underwriters, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the reasonable opinion of such counsel, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) The Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (cd) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares~~, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities~~, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory ~~in all material respects~~ to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (de) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx~~ Ropes and ~~Pxxxx PC, U.S. counsel to the Company,~~ Xxxx LLP shall have furnished to the ~~Representative (i)~~ Representatives such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing ~~Date~~ Date, and any Option Closing Date (if such date is other than the Closing Date), in form and substance satisfactory to the ~~form attached hereto~~ Representatives. (f) Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, LLP shall have furnished to the Representatives such counsel’s written opinion and negative assurance statement, as ~~Exhibit B-1 and (ii) a written statement providing certain “10b-5” negative assurances~~intellectual property counsel to the Company, addressed to the Underwriters and dated the Closing ~~Date~~ Date, and any Option Closing Date (if such date is other than the Closing Date), in form and substance satisfactory to the ~~form attached hereto as Exhibit B-2~~Representatives. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (fg) The ~~Representative~~ Underwriters shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Xxxxxxx Procter LLP, ~~U.S.~~ counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the ~~Representative~~ Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (gh) At the time of the execution of this Agreement, the ~~Representative~~ Representatives shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the ~~Representative~~ Representatives (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hi) On ~~the effective date of any post-effective amendment to any Registration Statement and on~~ the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the ~~Representative~~ Representatives shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representatives concurrently with the execution of this Agreement pursuant to paragraph (hd) of this Section 6. (ij) The Company shall have furnished to the ~~Representative~~ Representatives a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his or her capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure ~~Package, any Permitted Free Writing Prospectus~~ Package and the Prospectus and, in their opinion, the ~~Registration Statement~~ representations set forth in Section 3(b) and ~~each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact~~ 3(d) hereof are true and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleadingcorrect, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (iii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied in all material respects with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (jk) At the time of the execution of this Agreement and on the Closing Date, and any Option Closing Date (if such date is other than the Closing Date), the Representatives shall have received a certificate from the Company’s Chief Financial Officer, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representatives confirming the accuracy of the financial information reasonably requested by the Representatives. (l) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor ~~dispute or court or governmental action, order or decree~~dispute, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any material change in the capital stock or short-term or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness)~~its subsidiaries, or any ~~change, or any development involving a prospective change,~~ material adverse change in or affecting the business, general affairs, management, financial position, ~~stockholders~~prospects, shareholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its subsidiaries otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (il), is, in the judgment of the ~~Representative~~Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (km) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries. (ln) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (ii)(A) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ NASDAQ GSM or the ~~NYSE Amex~~ American Stock Exchange or in the over-the-counter market, or (B) trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the ~~Representative~~Representatives, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (mo) The ~~Applicable Trading Market~~ Company shall have ~~approved~~ filed a Notification: Listing of Additional Shares with the ~~Shares for inclusion therein~~ NASDAQ GSM, if required to do so, and shall have received no objection thereto from the ~~extent required, subject only to office notice of issuance~~NASDAQ GSM. (np) The ~~Representative~~ Representatives shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ parties listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (sq) Prior to the Closing ~~Date and any Option Closing Date (if such date is other than the Closing~~ Date), the Company shall have furnished to the ~~Underwriters~~ Representatives such ~~further information~~good standing certificates, ~~opinions~~secretary and officers’ certificates, ~~comfort letter, certificates (including a Secretary’s Certificate), letters~~ or such other documents as the ~~Representative~~ Representatives shall have reasonably requested. The several obligations of the Underwriters to purchase Additional Shares, if any, hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of such documents as it may reasonably request with respect to the good standing of the Company, opinions, comfort letters, certificates, letters, documents, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date, and other matters related to the issuance of such Additional Shares. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Equity Underwriting Agreement (Sarepta Therapeutics, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the ~~Representative~~Representatives; ~~the Rule 462(b) Registration Statement, if any,~~ each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 of the Securities Act) with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a)~~, and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission~~; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the reasonable opinion of counsel for the Underwriters, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the reasonable opinion of such counsel, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) The Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (cd) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares~~, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities~~, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory ~~in all material respects~~ to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (de) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx~~ Ropes and ~~Pxxxx PC, U.S. counsel to the Company,~~ Xxxx LLP shall have furnished to the ~~Representative (i)~~ Representatives such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing ~~Date~~ Date, and any Option Closing Date (if such date is other than the Closing Date), in form and substance satisfactory to the ~~form attached hereto~~ Representatives. (f) Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, LLP shall have furnished to the Representatives such counsel’s written opinion and negative assurance statement, as ~~Exhibit B-1 and (ii) a written statement providing certain “10b-5” negative assurances~~intellectual property counsel to the Company, addressed to the Underwriters and dated the Closing ~~Date~~ Date, and any Option Closing Date (if such date is other than the Closing Date), in form and substance satisfactory to the ~~form attached hereto as Exhibit B-2~~Representatives. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (fg) The ~~Representative~~ Underwriters shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Xxxxxxx Procter LLP, ~~U.S.~~ counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the ~~Representative~~ Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (gh) At the time of the execution of this Agreement, the ~~Representative~~ Representatives shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the ~~Representative~~ Representatives (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hi) On ~~the effective date of any post-effective amendment to any Registration Statement and on~~ the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the ~~Representative~~ Representatives shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representatives concurrently with the execution of this Agreement pursuant to paragraph (hd) of this Section 6. (ij) The Company shall have furnished to the ~~Representative~~ Representatives a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, interim Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his or her capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure ~~Package, any Permitted Free Writing Prospectus~~ Package and the Prospectus and, in their opinion, the ~~Registration Statement~~ representations set forth in Section 3(b) and ~~each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact~~ 3(d) hereof are true and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleadingcorrect, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (iii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied in all material respects with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (j) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any Subsidiary 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 in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or long-term debt of the Company nor any Subsidiary (other than stock option and warrant exercises in the ordinary course of business and repayments of existing indebtedness), or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and any Subsidiary, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares and the Representative’s Option on the terms and in the manner contemplated in the General Disclosure Package. (k) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary. (l) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, Applicable Trading Market or the NYSE Amex or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (m) The Applicable Trading Market shall have approved the Shares for inclusion therein to the extent required, subject only to office notice of issuance. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the Underwriters such further information, opinions, comfort letter, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Equity Underwriting Agreement (Sarepta Therapeutics, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The ~~respective~~ obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on at the ~~Closing Date~~ Time of Purchase and at any ~~Option Closing Date~~Additional Time of Purchase, as the case may be, of the representations and warranties of the Company contained ~~herein~~herein (except for inaccuracies that would not result in a Material Adverse Effect), to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Company, in all material ~~respects~~ respects, of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, ~~any Preliminary Prospectus,~~ the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge, threatened~~ by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied ~~with to the reasonable satisfaction of the Representative~~with; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the~~ Registration Statement or any amendment or supplement thereto ~~contains~~ shall not contain an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the Representative’s Option Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company, shall have furnished to the Representative (i) such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-1 and (ii) a written statement providing certain “10b-5” negative assurances, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative shall have received from Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered public accounting firm with respect to the Company and any Subsidiary within the meaning of the Securities Act and the rules and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriters concurrently with the execution of this Agreement pursuant to paragraph (h) of this Section 6. (i) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, its President or a Vice President and its Vice President, Finance stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact ~~and did not~~ or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and none of the General Disclosure Package, ~~as of the Applicable Time,~~ any ~~Permitted~~ Issuer Free Writing Prospectus ~~as of its date and as of~~ or the ~~Closing Date (~~Prospectus, or any ~~Option Closing Date if such date is other than the Closing Date), the Prospectus and each~~ amendment or supplement thereto, ~~as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any~~ shall contain an untrue statement of a material fact ~~and did not~~ or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading. (c) The Company shall have entered into Subscription Agreements with each of the Purchasers and such agreements shall be in full force and effect. (d) The Company shall have furnished to the Underwriter a certificate, dated the Closing Date or the Additional Closing Date, as the case may be, of its Chief Executive Officer and its Chief Financial Officer stating that (iii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the Prospectus, (~~iii~~ii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, except for inaccuracies that would not result in a Material Adverse Effect, and the Company has ~~complied~~ complied, in all material ~~respects~~ respects, with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, or, to the Company’s knowledge, the Company, its Subsidiaries, Target and its subsidiaries, taken as a whole, or any change or development that, ~~singularly~~ individually or in the aggregate, would reasonably be expected to involve a material adverse change ~~or a prospective material adverse change,~~ in or affecting the condition (financial or otherwise), results of operations, ~~business,~~ business or assets ~~or prospects~~ of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, or, to the Company’s knowledge, the Company, its Subsidiaries, Target and its subsidiaries, taken as a whole, except as set forth in the Prospectus. (je) Since the date of the latest audited financial statements with respect to the Company and its Subsidiaries included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its Subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock of the Company or any change in the long-term debt of the Company ~~nor any Subsidiary (other than stock option~~ and ~~warrant exercises in the ordinary course of business and repayments of existing indebtedness)~~its Subsidiaries, taken as a whole, or any ~~change,~~ change or any development ~~involving a prospective change,~~ in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary~~its Subsidiaries, taken as a whole, or, to the Company’s knowledge, the Company, its Subsidiaries, Target and its subsidiaries, taken as a whole, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this ~~paragraph (i~~Section 6(e), ~~is,~~ would result in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares and the Representative’s Option on the terms and in the manner contemplated in the General Disclosure Packagea Material Adverse Effect. (kf) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~result in a Material Adverse Effect; and no injunction, restraining order or order of any other nature by any United States federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~result in a Material Adverse Effect. (lg) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock ~~Exchange, Applicable Trading Market~~ Exchange or the ~~NYSE Amex~~ NASDAQ Stock Market or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a banking moratorium shall have been declared by ~~Federal~~ United States federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, ; (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United ~~States or~~ States; (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the reasonable judgment of the ~~Representative~~Underwriter, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus; or (v) the Company shall have received no objections from the NASDAQ Capital Market with respect to the listing of additional shares notification that it filed with the NASDAQ Capital Market in connection with the Offering. (mh) The ~~Applicable Trading Market shall have approved the Shares for inclusion therein to the extent required, subject only to office notice of issuance. (n) The Representative~~ Underwriter shall have received the written agreements, substantially in the form of Exhibit A B hereto, of the ~~persons~~ executive officers and directors of the Company listed in on Schedule B to this Agreement~~. (o) At Closing~~. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Underwriter or by the Independent Underwriter by notice to the Company ~~shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name~~ at any time on or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior prior to the Closing Date ~~and~~ and, with respect to the Additional Shares, at any ~~Option Closing Date (if such date is other than~~ time on or prior to the applicable Additional Closing Date), the Company shall have furnished to the Underwriters such further information, opinions, comfort letter, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement which termination shall be ~~deemed~~ without liability on the part of any party to any other party, except that Sections 5, 6, 7 and 8 shall at all times be ~~in compliance with the provisions hereof only if they are in form~~ effective and ~~substance reasonably satisfactory to counsel for the Underwriters~~shall survive such termination.

Appears in 1 contract

Samples: Underwriting Agreement (B. Riley Financial, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the Firm Shares and any Additional Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section ~~4(a~~4.1(a), ; and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares, the~~ Representative’s ~~Option~~ Warrant Agreement, the Representative’s Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the Representative’s ~~Option~~ Warrant Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx~~ Xxxxxx ~~Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ & Xxx LLP shall have furnished to the Representative ~~(i)~~ such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit ~~B-1 and (ii)~~ B. Such counsel shall also have furnished to the Representative a written statement providing certain “10b-5” negative assurances, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit ~~B-2.~~B. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, ~~U.S.~~ counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ) addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (gf) At the time of the execution of this Agreement, the Representative shall have received from ~~Kxxx Fxxxx Gxxxxx~~ Xxxxxx & ~~Kasierer~~Company, ~~a member of Ernst & Young Global,~~ Inc. a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered public accounting firm with respect to the Company and any Subsidiary within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hg) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx~~ Xxxxxx & ~~Kasierer~~Company, ~~a member of Ernst & Young Global,~~ Inc. addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriters concurrently with the execution of this Agreement pursuant to paragraph (hi) of this Section 66.1. (ih) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its ~~Chairman of the Board, its President or a Vice President~~ Chief Executive Officer and its ~~Vice President, Finance~~ Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the ~~applicable effective date,~~ Applicable Time and as of the date of this Agreement and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable ~~Time~~Time and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing ~~Date (or any Option Closing Date if such date is other than the Closing~~ Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the Prospectus, (iii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and correct and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date (or any Option Closing Date if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any Subsidiary, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company or any Subsidiary, except as set forth in the Prospectus. (ji) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, and except as set forth in the Prospectus, (i) neither the Company nor any Subsidiary 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 in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or long-term debt of the Company nor any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course of business and repayments of existing indebtedness)~~Subsidiary, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and any Subsidiary, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ik), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares and the Representative’s ~~Option~~ Warrant on the terms and in the manner contemplated in the General Disclosure Package. (kj) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary. (lk) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ Nasdaq CM or the NYSE Amex or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (ml) The ~~Applicable Trading Market~~ Nasdaq CM shall have approved the Shares for inclusion ~~therein to the extent required~~therein, subject only to ~~office~~ official notice of ~~issuance~~issuance and evidence of satisfactory distribution. (nm) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers and directors of the Company listed in Schedule B to this Agreement. (on) At Closing, the Company shall have delivered the executed Representative’s ~~Option~~ Warrant Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (po) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (rp) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act)Reserved. (s) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the Underwriters such further information, opinions, comfort letter, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Netsol Technologies Inc)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the Firm Shares and any Additional Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any ~~Base~~ Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, ~~in the opinion of such counsel,~~ is material or omits to state any fact which~~, in the opinion of such counsel~~, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares~~Common Stock, the Representative’s ~~Option Agreement~~Warrant, the Representative’s Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the Representative’s ~~Option Agreement~~ Warrant and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ SNR Dxxxxx LLP shall have furnished to the Representative ~~(i)~~ such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit ~~B-1 and (ii)~~ B. SNR Dxxxxx LLP shall also have furnished to the Representative a written statement providing certain “10b-5” negative assurances, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit ~~B-2.~~B. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative shall have received from Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global~~Cacciamatta Accountancy Corporation, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered public accounting firm with respect to the Company and any Subsidiary within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hf) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ Cacciamatta Accountancy Corporation addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriters concurrently with the execution of this Agreement pursuant to paragraph (hi) of this Section 6. (ig) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, its President or a Vice President and its Vice President, Finance solely in their capacities as officers of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the ~~applicable effective date,~~ Applicable Time and as of the date of this Agreement and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable ~~Time~~Time and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing ~~Date (or any Option Closing Date if such date is other than the Closing~~ Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the Prospectus, (iii) to the best of their knowledge, as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and correct and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date (or any Option Closing Date if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any Subsidiary, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company or any Subsidiary, except as set forth in the Prospectus. (jh) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any Subsidiary 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 in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or long-term debt of the Company nor any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course of business and repayments of existing indebtedness)~~Subsidiary, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and any Subsidiary, otherwise than as set forth in the Registration Statement, the Prospectus or the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ik), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares and the Representative’s ~~Option~~ Warrant on the terms and in the manner contemplated in the General Disclosure Package. (ki) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or the Representative’s Securities or materially and adversely affect ~~or potentially materially and adversely affect~~ the business or operations of the Company or any Subsidiary; taken as a whole, and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary. (lj) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, Applicable Trading Market or the NYSE Amex or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (mk) The Applicable Trading Market shall have approved the Shares for inclusion therein to the extent required, subject only to ~~office~~ official notice of issuance. (nl) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons listed in Schedule B to this Agreement. (om) At Closing, the Company shall have delivered the executed the Representative’s ~~Option Agreement~~ Warrant to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (pn) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (ro) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the transactions contemplated hereby, including as an exhibit thereto this Agreement and any other documents relating thereto. (p) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (sq) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the Underwriters such further information, opinions, comfort letter, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (CNS Response, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the ~~Representative~~Representatives; ~~the Rule 462(b) Registration Statement, if any,~~ each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 of the Securities Act) with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a)~~, and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission~~; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the reasonable opinion of counsel for the Underwriters, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the reasonable opinion of such counsel, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) The Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (cd) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares~~, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities~~, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory ~~in all material respects~~ to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (de) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx~~ Ropes and ~~Pxxxx PC, U.S. counsel to the Company,~~ Xxxx LLP shall have furnished to the ~~Representative (i)~~ Representatives such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing ~~Date~~ Date, and any Option Closing Date (if such date is other than the Closing Date), in ~~the~~ form ~~attached hereto as Exhibit B-1~~ and ~~(ii) a written statement providing certain “10b-5” negative assurances, addressed~~ substance satisfactory to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3Representatives. (f) The ~~Representative~~ Underwriters shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Xxxxxxx Procter LLP, ~~U.S.~~ counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the ~~Representative~~ Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (g) At the time of the execution of this Agreement, the ~~Representative~~ Representatives shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the ~~Representative~~ Representatives (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the ~~effective date of any post-effective amendment to any Registration Statement and on the~~ Closing Date and any Option Closing Date (if such date is other than the Closing Date), the ~~Representative~~ Representatives shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representatives concurrently with the execution of this Agreement pursuant to paragraph (hd) of this Section 6. (i) The Company shall have furnished to the ~~Representative~~ Representatives a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, interim Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his or her capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure ~~Package, any Permitted Free Writing Prospectus~~ Package and the Prospectus and, in their opinion, the ~~Registration Statement~~ representations set forth in Section 3(b) and ~~each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact~~ 3(d) hereof are true and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleadingcorrect, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (iii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied in all material respects with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (j) On the date of this Agreement on the Closing Date and on any Option Closing Date, the Representatives shall have received a written certificate executed by the Chief Financial Officer of the Company, in substantially the form annexed hereto as Exhibit B. (k) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor ~~dispute or court or governmental action, order or decree~~dispute, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any material change in the capital stock or short-term or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness)~~its subsidiaries, or any ~~change, or any development involving a prospective change,~~ material adverse change in or affecting the business, general affairs, management, financial position, ~~stockholders~~prospects, shareholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its subsidiaries otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ik), is, in the judgment of the ~~Representative~~Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (kl) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries. (lm) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (ii)(A) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ NASDAQ GSM or the ~~NYSE Amex~~ American Stock Exchange or in the over-the-counter market, or (B) trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the ~~Representative~~Representatives, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (mn) The ~~Applicable Trading Market~~ Company shall have ~~approved~~ filed a Notification: Listing of Additional Shares with the ~~Shares for inclusion therein to~~ NASDAQ GSM and shall have received no objection thereto from the ~~extent required, subject only to office notice of issuance~~NASDAQ GSM. (no) The ~~Representative~~ Representatives shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ parties listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing ~~Date and any Option Closing Date (if such date is other than the Closing~~ Date), the Company shall have furnished to the ~~Underwriters~~ Representatives such ~~further information~~good standing certificates, ~~opinions~~secretary and officers’ certificates, ~~comfort letter, certificates (including a Secretary’s Certificate), letters~~ or such other documents as the ~~Representative~~ Representatives shall have reasonably requested. The several obligations of the Underwriters to purchase Additional Shares, if any, hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of such documents as it may reasonably request with respect to the good standing of the Company, opinions, comfort letters, certificates, letters, documents, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date, and other matters related to the issuance of such Additional Shares. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Equity Underwriting Agreement (Sarepta Therapeutics, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the Firm ~~Shares~~ Securities and any ~~Additional Shares~~Option Securities, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any ~~Base~~ Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a)) , and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, ~~in the opinion of such counsel,~~ is material or omits to state any fact which~~, in the opinion of such counsel~~, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the ~~Shares~~Public Securities, the ~~Ordinary Shares~~Common Stock, the Representative’s ~~Option Agreement~~Purchase Option, the Representative’s Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the Representative’s Purchase Option ~~Agreement~~ and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx~~ SNR Xxxxxx ~~Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ LLP shall have furnished to the Representative ~~(i)~~ such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit ~~B-1 and (ii)~~ B . SNR Xxxxxx LLP shall also have furnished to the Representative a written statement providing certain “10b-5” negative assurances, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit ~~B-2~~B . (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative shall have received from Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global~~Cacciamatta Accountancy Corporation, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered public accounting firm with respect to the Company and any Subsidiary within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hf) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ Cacciamatta Accountancy Corporation addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriters concurrently with the execution of this Agreement pursuant to paragraph (hi) of this Section 6. (ig) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, its President or a Vice President and its Vice President, Finance solely in their capacities as officers of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the ~~applicable effective date,~~ Applicable Time and as of the date of this Agreement and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable ~~Time~~Time and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing ~~Date (or any Option Closing Date if such date is other than the Closing~~ Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the Prospectus, (iii) to the best of their knowledge, as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and correct and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date (or any Option Closing Date if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any Subsidiary, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company or any Subsidiary, except as set forth in the Prospectus. (jh) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any Subsidiary 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 in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or long-term debt of the Company nor any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course of business and repayments of existing indebtedness)~~Subsidiary, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and any Subsidiary, otherwise than as set forth in the Registration Statement, the Prospectus or the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i)k) , is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the ~~Shares~~ Public Securities and the Representative’s Purchase Option on the terms and in the manner contemplated in the General Disclosure Package. (ki) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the ~~Shares~~ Public Securities or the Representative’s Securities or ~~materially and adversely affect or potentially~~ materially and adversely affect the business or operations of the Company or any Subsidiary; taken as a whole, and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the ~~Shares~~ Public Securities or the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary. (lj) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, Applicable Trading Market or the NYSE Amex or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the ~~Shares~~ Public Securities on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (mk) The Applicable Trading Market shall have approved the ~~Shares~~ Public Securities for inclusion therein to the extent required, subject only to ~~office~~ official notice of issuance. (nl) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons listed in Schedule B to this Agreement. (om) At Closing, the Company shall have delivered the executed the Representative’s Purchase Option ~~Agreement~~ to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (pn) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (ro) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the transactions contemplated hereby, including as an exhibit thereto this Agreement and any other documents relating thereto. (p) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (sq) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the Underwriters such further information, opinions, comfort letter, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (CNS Response, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The ~~respective~~ obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on at the ~~Closing Date~~ Time of Purchase and at any ~~Option Closing Date~~Additional Time of Purchase, as the case may be, of the representations and warranties of the Company contained ~~herein~~herein (except for inaccuracies that would not result in a Material Adverse Effect), to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Company, in all material ~~respects~~ respects, of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, ~~any Preliminary Prospectus,~~ the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge, threatened~~ by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied ~~with to the reasonable satisfaction of the Representative~~with; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the~~ Registration Statement or any amendment or supplement thereto ~~contains~~ shall not contain an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the Representative’s Option Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company, shall have furnished to the Representative (i) such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-1 and (ii) a written statement providing certain “10b-5” negative assurances, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative shall have received from Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered public accounting firm with respect to the Company and any Subsidiary within the meaning of the Securities Act and the rules and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriters concurrently with the execution of this Agreement pursuant to paragraph (h) of this Section 6. (i) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, its President or a Vice President and its Vice President, Finance stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact ~~and did not~~ or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and none of the General Disclosure Package, ~~as of the Applicable Time,~~ any ~~Permitted~~ Issuer Free Writing Prospectus ~~as of its date and as of~~ or the ~~Closing Date (~~Prospectus, or any ~~Option Closing Date if such date is other than the Closing Date), the Prospectus and each~~ amendment or supplement thereto, ~~as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any~~ shall contain an untrue statement of a material fact ~~and did not~~ or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading. (c) Xxxxxx, Xxxxx & Xxxxxxx LLP shall have furnished to the Representatives, on behalf of the Underwriters, such counsel’s written opinion, as counsel to the Company, addressed to the Representatives and dated the Closing Date or the Additional Closing Date, as the case may be, satisfactory in form and substance to the Representatives. (iid) Dentons US LLP shall have furnished to the Representatives, on behalf of the Underwriters, such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Representatives and dated the Closing Date or the Additional Closing Date, as the case may be, satisfactory in form and substance to the Representatives. (e) Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP shall have furnished to the Representatives, on behalf of the Underwriters, such counsel’s written opinions, as counsel to the Underwriters, addressed to the Representatives and dated the Closing Date or the Additional Closing Date, as the case may be, satisfactory in form and substance to the Representatives. (f) RSM US LLP, independent auditors to the Company, shall have furnished to the Representatives, on behalf of the Underwriters, a comfort letter, addressed to the Representatives and dated the Closing Date or the Additional Closing Date, as the case may be, satisfactory in form and substance to the Representatives. (g) Xxxxx Xxxxx Xxxxxxx Xxxxxx, LLP, independent auditors to Skout, Inc. shall have furnished to the Representatives, on behalf of the Underwriters, a comfort letter, addressed to the Representatives and dated the Closing Date or the Additional Closing Date, as the case may be, satisfactory in form and substance to the Representatives. (h) The Company shall have furnished to the Representatives, on behalf of the Underwriters, a certificate, dated the Closing Date or the Additional Closing Date, as the case may be, of its Chief Executive Officer and its Chief Financial Officer stating that (i) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the Prospectus, (~~iii~~ii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has ~~complied~~ complied, in all material ~~respects~~ respects, with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, or any change or development that, ~~singularly~~ singly or in the aggregate, would reasonably be expected to involve a material adverse change ~~or a prospective material adverse change,~~ in or affecting the condition (financial or otherwise), results of operations, ~~business,~~ business or assets ~~or prospects~~ of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, except as set forth in the Prospectus. (i) The Company shall have further furnished to the Representatives, on behalf of the Underwriters, a CFO certificate, dated the Closing Date or the Additional Closing Date, as the case may be, signed by its Chief Financial Officer certifying to certain information, satisfactory in form and substance to the Representatives. (j) Since the date of the latest audited financial statements with respect to the Company and its Subsidiaries included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its Subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock of the Company or any change in the long-term debt of the Company ~~nor any Subsidiary (other than stock option~~ and ~~warrant exercises in the ordinary course of business and repayments of existing indebtedness)~~its Subsidiaries, taken as a whole, or any ~~change,~~ change or any development ~~involving a prospective change,~~ in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary~~its Subsidiaries, taken as a whole, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this ~~paragraph (i~~Section 6(j), ~~is,~~ would result in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares and the Representative’s Option on the terms and in the manner contemplated in the General Disclosure Packagea Material Adverse Effect. (k) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~result in a Material Adverse Effect; and no injunction, restraining order or order of any other nature by any United States federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~result in a Material Adverse Effect. (l) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock ~~Exchange, Applicable Trading Market~~ Exchange or the ~~NYSE Amex~~ NASDAQ Stock Market or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a banking moratorium shall have been declared by ~~Federal~~ United States federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, ; (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United ~~States or~~ States; (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the reasonable judgment of the ~~Representative~~Representatives, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus; or (v) the Company shall have received an objection from the NASDAQ Capital Market with respect to the listing of additional shares notification that it filed with the NASDAQ Capital Market in connection with the Offering. (m) The ~~Applicable Trading Market shall have approved the Shares for inclusion therein to the extent required, subject only to office notice of issuance. (n) The Representative~~ Underwriters shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers and directors of the Company listed in on Schedule B D to this Agreement~~. (o) At Closing~~. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives, on behalf of the Underwriters, by notice to the Company ~~shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name~~ at any time on or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior prior to the Closing Date ~~and~~ and, with respect to the Additional Shares, at any ~~Option Closing Date (if such date is other than~~ time on or prior to the applicable Additional Closing Date), the Company shall have furnished to the Underwriters such further information, opinions, comfort letter, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement which termination shall be ~~deemed~~ without liability on the part of any party to any other party, except that Sections 5, 6, 7 and 9 shall at all times be ~~in compliance with the provisions hereof only if they are in form~~ effective and ~~substance reasonably satisfactory to counsel for the Underwriters~~shall survive such termination.

Appears in 1 contract

Samples: Underwriting Agreement (MeetMe, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, ~~when made and~~ as of the ~~Applicable Time~~ date hereof and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 of the Securities Act) with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission~~; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby~~. (b) The ~~Underwriters~~ Representative shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the~~ Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (di) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ Ropes & Xxxx LLP shall have furnished to the Representative ~~(i)~~ such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing ~~Date~~ Date, and any Option Closing Date (if such date is other than the Closing Date), in form and substance reasonably satisfactory to the ~~form attached hereto as Exhibit B-1 and~~ Representative. (ii) a Xxxxxx LLP shall have furnished to the Representative such counsel’s written ~~statement providing certain “10b-5” negative assurances~~opinion, as intellectual property counsel to the Company, addressed to the Underwriters and dated the Closing ~~Date~~ Date, and any Option Closing Date (if such date is other than the Closing Date), in form and substance reasonably satisfactory to the ~~form attached hereto as Exhibit B-2~~Representative. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the The Underwriters ~~and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative~~ shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Proskauer Rose LLP, ~~U.S.~~ counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date)~~, addressed to the Underwriters~~, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (gf) At the time of the execution of this Agreement, the Representative shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ Xxxxx Xxxxxxxx LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (iA) confirming that ~~they are~~ such firm is an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hg) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ Xxxxx Xxxxxxxx LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representative concurrently with the execution of this Agreement pursuant to paragraph (hg) of this Section 6. (ih) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its ~~Chairman~~ Chief Executive Officer and its Chief Financial Officer, each in his capacity as an officer of the ~~Board~~Company, ~~its President or a Vice President and its Vice President, Finance~~ stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (~~iii~~ii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof and such representations and warranties shall be true and correct in all respects), and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse ~~change,~~ change in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (ji) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or short-term or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness)~~its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its subsidiaries otherwise than as set forth in the General Disclosure ~~Package~~Package or as a result of the exercise of securities in connection with any benefit plan or similar plan, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ij), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (kj) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries. (lk) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock ~~Exchange, Applicable Trading Market~~ Exchange or the ~~NYSE Amex~~ NASDAQ GSM or in the over-the-counter market, or trading in any securities of the Company on any ~~exchange or in the over-the-counter market~~exchange, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ GSM and shall have received no objection thereto from the NASDAQ GSM. (m) ~~The Applicable Trading Market~~ FINRA shall have ~~approved the Shares for inclusion therein~~ raised no objection to the ~~extent required, subject only to office notice~~ fairness and reasonableness of ~~issuance~~the terms of this Agreement or the transactions contemplated hereby. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers and directors of the Company listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing ~~Date and any Option Closing Date (if such date is other than the Closing~~ Date), the Company shall have furnished to the ~~Underwriters~~ Representative such further information, documents with respect to the good standing of the Company, opinions~~, comfort letter~~, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. The several obligations of the Underwriters to purchase Additional Shares, if any, hereunder are subject to the delivery to the Representative on the applicable Option Closing Date of such documents as it may reasonably request with respect to the good standing of the Company, opinions, comfort letters, certificates, letters, documents, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date, and other matters related to the issuance of such Additional Shares. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Novavax Inc)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the ~~Closing Date and any Option~~ Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the ~~Representative~~Representatives; ~~the Rule 462(b) Registration Statement, if any,~~ each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 of the Securities Act) with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a)~~, and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission~~; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the reasonable opinion of counsel for the Underwriters, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the reasonable opinion of such counsel, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) The Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and ~~any Option Closing Date~~ that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (cd) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares~~, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities~~, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory ~~in all material respects~~ to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (de) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx~~ Ropes and ~~Pxxxx PC, U.S. counsel to the Company,~~ Xxxx LLP shall have furnished to the ~~Representative (i)~~ Representatives such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing Date in form and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-1 and (ii) a written statement providing certain “10b-5” negative assurances, addressed substance satisfactory to the ~~Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2~~Representatives. (ef) ~~Raved Magriso Benkel~~ Xxxxxx Xxxxxxx Xxxxx & ~~Co.~~Xxxxxxxxxxx, ~~Israeli counsel to the Company,~~ LLP shall have furnished to the ~~Representative~~ Representatives such counsel’s written ~~opinion, including a written statement providing certain “10b-5”~~ opinion and negative ~~assurances~~assurance statement, as intellectual property counsel to the Company, addressed to the Underwriters and dated the Closing Date in form and ~~any Option Closing Date (if such date is other than~~ substance satisfactory to the ~~Closing Date), in the form attached hereto as Exhibit B-3~~Representatives. (fg) The ~~Representative~~ Underwriters shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Xxxxxxx Procter LLP, ~~U.S.~~ counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurances statement, dated the Closing Date ~~and any Option Closing Date (if such date is other than the Closing Date), addressed to the Underwriters,~~ with respect to such matters as the ~~Representative~~ Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (gh) At the time of the execution of this Agreement, the ~~Representative~~ Representatives shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the ~~Representative~~ Representatives (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hi) On the ~~effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the~~ Closing Date), the ~~Representative~~ Representatives shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP addressed to the Underwriters and dated the Closing Date ~~and any Option Closing Date (if such date is other than the Closing Date)~~ confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representatives concurrently with the execution of this Agreement pursuant to paragraph (hd) of this Section 6. (ij) The Company shall have furnished to the ~~Representative~~ Representatives a certificate, dated the Closing ~~Date and any Option Closing Date (if such date is other than the Closing~~ Date), of its Chairman of the Board, interim Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his or her capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure ~~Package, any Permitted Free Writing Prospectus~~ Package and the Prospectus and, in their opinion, the ~~Registration Statement~~ representations set forth in Section 3(b) and ~~each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact~~ 3(d) hereof are true and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleadingcorrect, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (iii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing ~~Date (or any Option Closing Date if such date is other than the Closing~~ Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied in all material respects with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing ~~Date (or any Option Closing Date if such date is other than the Closing~~ Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (j) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any Subsidiary 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 in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or long-term debt of the Company nor any Subsidiary (other than stock option and warrant exercises in the ordinary course of business and repayments of existing indebtedness), or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and any Subsidiary, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares and the Representative’s Option on the terms and in the manner contemplated in the General Disclosure Package. (k) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary. (l) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, Applicable Trading Market or the NYSE Amex or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (m) The Applicable Trading Market shall have approved the Shares for inclusion therein to the extent required, subject only to office notice of issuance. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the Underwriters such further information, opinions, comfort letter, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Equity Underwriting Agreement (Sarepta Therapeutics, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The ~~respective~~ obligations of the Underwriters hereunder, and the closing of the ~~sale of the Firm Shares and any Additional Shares~~Offering, are subject to the accuracy, when made and as of the Applicable ~~Time and~~ Time, on the Closing Date and on any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No The Registration Statement is effective under the Securities Act, and no stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the ~~Representative~~Underwriters; the Rule 462(b) Registration Statement, if any, ~~each~~ any Issuer Free Writing Prospectus~~, if any~~, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section ~~4(a~~4 (a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; ~~and~~ and, if applicable, FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date ~~and~~ or any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact ~~which~~that, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact ~~which~~that, in the opinion of such counsel, is material or omits to state any fact ~~which~~that, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the~~ Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ TroyGould PC shall have furnished to the ~~Representative (i)~~ Underwriters, such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing Date ~~and any~~ or the Option Closing ~~Date (if such date is other than the Closing~~ Date), as applicable, in the form ~~attached hereto as Exhibit B-1~~ and ~~(ii) a written statement providing certain “10b-5” negative assurances, addressed~~ substance reasonably satisfactory to the ~~Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2~~Underwriters. (e) ~~Raved Magriso Benkel~~ Xxxxxx Xxxxxxx Xxxxx & ~~Co., Israeli counsel to the Company,~~ Xxxxxxxxxxx LLP shall have furnished to the ~~Representative~~ Underwriters, such counsel’s written opinion, ~~including a written statement providing certain “10b-5” negative assurances,~~ as intellectual property counsel to the Company, addressed to the Underwriters and dated the Closing Date ~~and any~~ or the Option Closing ~~Date (if such date is other than the Closing~~ Date), as applicable, in the form ~~attached hereto as Exhibit B-3~~and substance reasonably satisfactory to the Underwriters. (f) The Representative shall have received from Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters. (g) At the time of the execution of this Agreement, the ~~Representative~~ Underwriters shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer~~BDO USA, ~~a member of Ernst & Young Global~~LLP, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the ~~Representative~~ Underwriters (i) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company ~~and any Subsidiary~~ within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of~~ Regulations and the PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information relating to the Company contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hg) On the effective date of any post-effective amendment to any Registration ~~Statement and~~ Statement, on the Closing Date and on any Option Closing ~~Date (if such date is other than the Closing~~ Date), the ~~Representative~~ Underwriters shall have received a letter (the “BDO Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer~~BDO USA, ~~a member of Ernst & Young Global,~~ LLP addressed to the Underwriters and dated the Closing Date ~~and any~~ or the Option Closing ~~Date (if such date is other than the Closing~~ Date) , as applicable, confirming, as of the date of the BDO Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters relating to the Company covered by its letter delivered to the Underwriters concurrently with the execution of this Agreement pursuant to paragraph (hg) of this Section 6. (ih) The Company shall have furnished to the ~~Representative~~ Underwriters a certificate, dated the Closing ~~Date and any~~ Date, or the Option Closing ~~Date (if such date is other than the Closing~~ Date), as applicable, of its ~~Chairman~~ President or Chief Executive Officer and its Treasurer stating in their capacities as officers of the ~~Board, its President or a Vice President and its Vice President, Finance stating~~ Company that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, at the Applicable Time and as of the ~~applicable effective date~~date of this Agreement and as of the Closing Date or the Option Closing Date, as applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable ~~Time~~Time and as of the Closing Date or the Option Closing Date, as applicable, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or ~~any~~ the Option Closing ~~Date if such date is other than the Closing~~ Date), as applicable, and the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or ~~any~~ the Option Closing ~~Date if such date is other than the Closing~~ Date), as applicable, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred ~~which~~ that should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (iii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date (or ~~any~~ the Option Closing ~~Date if such date is other than the Closing~~ Date), as applicable, the representations and warranties of the Company in this Agreement are true and correct in all material respects (except that to the extent that any representations and warranties are qualified as to materiality, then such representations and warranties shall be true and correct in all respects) and the Company has complied in all material respects with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date (or ~~any~~ the Option Closing ~~Date if such date is other than the Closing~~ Date), as applicable, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any Subsidiary, or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company or any Subsidiary, except as set forth in the Prospectus. (ji) Since the date of the latest audited financial statements included in the Registration Statement, the General Disclosure Package or the Prospectus or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus as of the date hereof, (i) neither the Company nor any Subsidiary 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 in the Registration Statement, the General Disclosure ~~Package~~Package and the Prospectus, and (ii) there shall not have been any change in the capital stock (other than Excluded Issuances) or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course of business and repayments of existing indebtedness)~~Subsidiary, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company ~~and~~ or any Subsidiary, otherwise than as set forth in the Registration Statement, the General Disclosure ~~Package~~Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i), is, in the judgment of the ~~Representative~~Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the Registration Statement, the General Disclosure ~~Package~~Package and the Prospectus. (kj) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares ~~or the Representative’s Securities~~ or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary. (lk) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ Nasdaq GM, Nasdaq CM or the NYSE Amex LLC or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the ~~Representative~~Underwriters, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the General Disclosure Package and the Prospectus. (l) The Company shall have filed a Notification: Listing of Additional Shares covering the Shares with the Nasdaq CM and the Company shall not have received an objection thereto from the Nasdaq CM. (m) ~~The Applicable Trading Market~~ FINRA shall not have ~~approved the Shares for inclusion therein~~ objected to the ~~extent required, subject only~~ terms of the Offering or the compensation allowable or payable to ~~office notice of issuance~~the Underwriters as described in the Prospectus. (n) The ~~Representative~~ Underwriters shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers and directors of the Company listed in Schedule B to this Agreement. (o) ~~At Closing, the~~ The Company shall have ~~delivered~~ prepared and filed with the ~~executed Representative’s Option Agreement~~ Commission a Current Report on Form 8-K with respect to the ~~Representative in the form of Exhibit C hereto~~Offering, which shall ~~be issued in~~ include as an exhibit thereto this Agreement and a press release related to and describing the ~~name or names and in such authorized denominations as the Representative may request~~material terms of this Offering. (p) ~~The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable~~ On or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior prior to the Closing Date ~~and any~~ or the Option Closing ~~Date (if such date is other than the Closing~~ Date), as applicable, the Company shall have furnished to the Underwriters such further information, good standing documents, due authorizations and consents, opinions, certificates, comfort ~~letter, certificates (including a Secretary’s Certificate),~~ or other letters or ~~such other~~ documents as the ~~Representative~~ Underwriters shall have reasonably ~~requested~~requested related to the issuance of the Shares. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Galena Biopharma, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representative shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the~~ Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory ~~in all material respects~~ to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx~~ Xxxxxx ~~Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ & Xxxxxxx LLP shall have furnished to the Representative ~~(i)~~ such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), substantially in the form ~~attached hereto as~~ of and covering the matters referred to in Exhibit ~~B-1 and~~ B hereof. (iie) a Xxxxxx & Xxxxxxx LLP shall have furnished to the Representative, such counsel’s written ~~statement providing~~ opinion, with respect to certain ~~“10b-5” negative assurances~~regulatory matters, addressed to the Underwriters ~~and~~ dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), substantially in the form ~~attached hereto as~~ of and covering the matters referred to in Exhibit ~~B-2~~C hereof. (ef) ~~Raved Magriso Benkel~~ Xxxxxxxx & ~~Co.~~Xxxxxxxx LLP, ~~Israeli counsel to~~ the Company’s patent counsel, shall have furnished to the Representative such counsel’s written opinion, ~~including a written statement providing certain “10b-5” negative assurances, as counsel~~ with respect to ~~the Company~~intellectual property related to patent matters, addressed to the Underwriters ~~and~~ dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), substantially in the form ~~attached hereto as~~ of and covering the matters referred to in Exhibit ~~B-3~~D hereof. (fg) The ~~Representative~~ Underwriters shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Xxxxxx LLP, ~~U.S.~~ counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (gh) At the time of the execution of this Agreement, the Representative shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ PricewaterhouseCoopers LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative and PricewaterhouseCoopers (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiary within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hi) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ PricewaterhouseCoopers LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representative concurrently with the execution of this Agreement pursuant to paragraph (h) of this Section 6. (ij) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his or her capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the ~~effective~~ date of the ~~Registration Statement~~prospectus supplement relating to this Offering, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (~~iii~~ii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (jk) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor ~~any Subsidiary~~ its subsidiary 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 in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than the issuance of (a) Common Stock of the Company issued pursuant to the exercise of stock options previously outstanding under the Company’s equity incentive plans, (b) Common Stock of the Company issued pursuant to the Company’s employee stock purchase plan, (c) the issuance of options, restricted Common Stock, restricted stock units, or stock appreciation rights under the Company’s equity incentive plans, in each case, such issuance made in the ordinary course of business consistent with past practice of the Company and its subsidiary or (d) Common Stock prior to the date of this Agreement pursuant to that certain Common Stock Purchase Agreement, dated November 11, 2009, as amended on November 29, 2011, by and between Azimuth Opportunity Ltd. and the Company) or short-term or long-term debt of the Company ~~nor any Subsidiary~~ or its subsidiary (other than ~~stock option and warrant exercises~~ payments in the ordinary course of business in accordance with the terms of such short-term and ~~repayments~~ long-term debt of ~~existing indebtedness~~the Company or its subsidiary), or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its subsidiary otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ik), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (kl) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body ~~which~~ which, in the judgment of the Representative, would prevent the issuance or sale of the Shares ~~or the Representative’s Securities~~ or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or which, in the judgment of the Representative~~’s Securities or~~ , would materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiary. (lm) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading~~ the NASDAQ Global Market or the NYSE ~~Amex~~ Euronext or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (mn) The ~~Applicable Trading Market~~ Company shall have ~~approved~~ filed a Notification: Listing of Additional Shares with the ~~Shares for inclusion therein to~~ NASDAQ GSM and shall have received no objection thereto from the ~~extent required, subject only to office notice of issuance~~NASDAQ GSM. (no) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers, directors and those shareholders of the Company listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the ~~Underwriters~~ Representative such further information~~, opinions, comfort letter~~, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. (q) The several obligations of the Underwriters to purchase Additional Shares, if any, hereunder are subject to the delivery to the Representative on the applicable Closing Date or Option Closing Date, as the case may be, of such documents as it may reasonably request with respect to the good standing of the Company, opinions, comfort letters, certificates, letters, documents, the due authorization and issuance of the Additional Shares to be sold on such Closing Date or Option Closing Date, as the case may be, and other matters related to the issuance of such Additional Shares. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (MAP Pharmaceuticals, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The ~~respective~~ obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on at the ~~Closing Date and any Option Closing Date~~Time of Purchase or the Additional Time of Purchase, as the case may be, of the representations and warranties of the Company contained ~~herein~~herein (except for inaccuracies that would not result in a Material Adverse Effect), to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Company, in all material ~~respects~~ respects, of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, ~~any Preliminary Prospectus,~~ the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge, threatened~~ by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied ~~with to the reasonable satisfaction of the Representative~~with; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms ~~of this Agreement or the transactions contemplated hereby~~and arrangements. (b) The ~~Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the~~ Registration Statement or any amendment or supplement thereto ~~contains~~ shall not contain an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the Representative’s Option Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company, shall have furnished to the Representative (i) such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-1 and (ii) a written statement providing certain “10b-5” negative assurances, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative shall have received from Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered public accounting firm with respect to the Company and any Subsidiary within the meaning of the Securities Act and the rules and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriters concurrently with the execution of this Agreement pursuant to paragraph (h) of this Section 6. (i) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, its President or a Vice President and its Vice President, Finance stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact ~~and did not~~ or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and none of the General Disclosure Package, ~~as of the Applicable Time,~~ any ~~Permitted~~ Issuer Free Writing Prospectus ~~as of its date and as of~~ or the ~~Closing Date (~~Prospectus, or any ~~Option Closing Date if such date is other than the Closing Date), the Prospectus and each~~ amendment or supplement thereto, ~~as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any~~ shall contain an untrue statement of a material fact ~~and did not~~ or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading. (c) The Company shall have furnished to the Representative a certificate of the Company and the Manager, dated the Closing Date or the Additional Closing Date, as the case may be, of its Chief Executive Officer and its Chief Financial Officer of the Company and the Manager stating that (iii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus and which has not been so set forth, (~~iii~~ii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, the representations and warranties of the Company and the Manager in this Agreement are true and ~~correct~~ correct, except for inaccuracies that would not result in a Material Adverse Effect, and the Company ~~has complied~~ and the Manager have complied, in all material ~~respects~~ respects, with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to ~~the Closing Date (or any Option Closing Date if~~ such date ~~is other than the Closing Date),~~ and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change or development in the ~~financial position or results of operations~~ business of the Company ~~or any Subsidiary~~and its Subsidiaries, ~~or any change or development that, singularly or in the aggregate, would involve~~ taken as a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company or any Subsidiarywhole, except as set forth in the Prospectus. (jd) Since the date of the latest audited financial statements with respect to the Company and its Subsidiaries included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its Subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock of the Company or any change in the long-term debt of the Company ~~nor any Subsidiary (other than stock option~~ and ~~warrant exercises in the ordinary course of business and repayments of existing indebtedness)~~its Subsidiaries, taken as a whole, or any ~~change,~~ change or any development ~~involving a prospective change,~~ in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary~~its Subsidiaries, taken as a whole, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this ~~paragraph (i~~Section 6(e), ~~is,~~ would result in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares and the Representative’s Option on the terms and in the manner contemplated in the General Disclosure Packagea Material Adverse Effect. (ke) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~result in a Material Adverse Effect; and no injunction, restraining order or order of any other nature by any United States federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~result in a Material Adverse Effect. (lf) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock ~~Exchange, Applicable Trading Market~~ Exchange or the ~~NYSE Amex~~ NASDAQ Stock Market or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a banking moratorium shall have been declared by ~~Federal~~ United States federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, ; (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United ~~States~~ States; (iv) if there has been, in the judgment of the Representative, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any Material Adverse Change, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the reasonable judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (mg) The ~~Applicable Trading Market~~ Representative shall have ~~approved~~ received an opinion and negative assurance letter of Holland & Knight LLP, counsel for the ~~Shares for inclusion therein to~~ Company, dated the ~~extent required~~Closing Date or the Additional Closing Date, ~~subject only to office notice of issuance~~as the case may be, covering such matters as the Underwriters shall reasonably request. (nh) The Representative shall have received an opinion as to tax matters of Xxxxx Xxxxx LLP, tax counsel for the Company, dated the Closing Date or the Additional Closing Date, as the case may be, covering such matters as the Underwriters shall reasonably request. (i) The Representative shall have received the ~~written agreements~~favorable opinion of Xxxxx Xxxxxx LLP, ~~substantially in~~ counsel for the ~~form of Exhibit A hereto~~Underwriters, of dated the ~~persons listed in Schedule B to this Agreement. (o) At Closing~~Closing Date or the Additional Closing Date, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the ~~Representative~~ case may be, and covering such matters as the Underwriters shall reasonably request. (pj) The ~~Underwriters~~ Representative shall have received ~~clearance~~ from ~~FINRA as~~ Deloitte & Touche LLP letters dated, respectively, the date hereof, the Closing Date and, if applicable, the Additional Closing Date, in form and substance satisfactory to the ~~amount~~ Representative containing statements and information of ~~compensation allowable or payable~~ the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the ~~Underwriters as described~~ financial statements and certain financial information contained in the ~~Pricing Prospectus~~General Disclosure Package, the Prospectus and the Registration Statement. (rk) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the ~~Underwriters~~ Representative such further ~~information, opinions, comfort letter,~~ certificates ~~(including a Secretary’s Certificate), letters or such other~~ and documents as the Representative ~~shall have~~ may reasonably ~~requested~~require for the purpose of enabling the Underwriters to pass upon the issuance and sale of the Shares as herein contemplated. ~~All opinions, letters, evidence and certificates mentioned above or elsewhere~~ If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated in the absolute discretion of either Representative by written notice to the Company at any time on or prior to the Closing Date and, with respect to the Option Shares, at any time on or prior to the applicable Additional Closing Date, which termination shall be ~~deemed~~ without liability on the part of any party to any other party (except to the extent provided in Section 8 hereof), except that Sections 5, 6, 8 and 9 shall at all times be ~~in compliance with the provisions hereof only if they are in form~~ effective and ~~substance reasonably satisfactory to counsel for the Underwriters~~shall survive such termination.

Appears in 1 contract

Samples: Underwriting Agreement (Armour Residential REIT, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representative shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the reasonable opinion of counsel for the Underwriters, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the reasonable opinion of such counsel, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the~~ Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ DLA Piper LLP shall have furnished to the Representative ~~(i)~~ such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing Date, and any Option Closing Date (if such date is other than the Closing Date), in form and substance reasonably satisfactory to the Representative. (e) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx P.C., intellectual property counsel to the Company, shall have furnished to the Representative, such counsel’s written opinion, with respect to intellectual property matters, addressed to the Underwriters dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in ~~the~~ form ~~attached hereto as Exhibit B-1~~ and ~~(ii) a written statement providing certain “10b-5” negative assurances, addressed~~ substance reasonably satisfactory to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3Representative. (f) The ~~Representative~~ Underwriters shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Proskauer Rose LLP, ~~U.S.~~ counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date)~~, addressed to the Underwriters~~, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ Xxxxx Xxxxxxx XxXxxx P.C. a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ Xxxxx Xxxxxxx XxXxxx P.C. addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representative concurrently with the execution of this Agreement pursuant to paragraph (hg) of this Section 6. (i) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (~~iii~~ii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (j) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or short-term or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness)~~its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its subsidiaries otherwise than as set forth in the General Disclosure ~~Package~~Package or as a result of the exercise of securities in connection with any benefit plan or similar plan, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ij), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (k) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries. (l) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading~~ Nasdaq Stock Market or the NYSE ~~Amex~~ MKT or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (m) The ~~Applicable Trading Market~~ Company shall have ~~approved~~ filed a Notification: Listing of Additional Shares with the ~~Shares for inclusion therein to~~ NYSE MKT and shall have received no objection thereto from the ~~extent required, subject only to office notice of issuance~~NYSE MKT. (n) FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (o) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers and directors of the Company listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing ~~Date and any Option Closing Date (if such date is other than the Closing~~ Date), the Company shall have furnished to the ~~Underwriters~~ Representative such further information, good standing of the Company, opinions~~, comfort letter~~, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. (q) The several obligations of the Underwriters to purchase Additional Shares, if any, hereunder are subject to the delivery to the Representative on the applicable Option Closing Date of such documents as it may reasonably request with respect to the good standing of the Company, opinions, comfort letters, certificates, letters, documents, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date, and other matters related to the issuance of such Additional Shares. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Organovo Holdings, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representative shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the~~ Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ DLA Piper LLP shall have furnished to the Representative ~~(i)~~ such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing Date, and any Option Closing Date (if such date is other than the Closing Date), in form and substance reasonably satisfactory to the Representative. (e) Xxxxx Nand, Vice President, and Counsel Intellectual Property & Licensing, shall have furnished to the Representative, such counsel’s written opinion, with respect to intellectual property matters, addressed to the Underwriters dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in ~~the~~ form ~~attached hereto as Exhibit B-1~~ and ~~(ii) a written statement providing certain “10b-5” negative assurances, addressed~~ substance reasonably satisfactory to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3Representative. (f) The ~~Representative~~ Underwriters shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Proskauer Rose LLP, ~~U.S.~~ counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date)~~, addressed to the Underwriters~~, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the ~~Prospectus~~Prospectus for the years ended 2010 and 2011. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representative concurrently with the execution of this Agreement pursuant to paragraph (hg) of this Section 6. (i) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (~~iii~~ii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (j) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or short-term or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness)~~its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its subsidiaries otherwise than as set forth in the General Disclosure ~~Package~~Package or as a result of the exercise of securities in connection with any benefit plan or similar plan, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ij), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (k) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries. (l) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ NASDAQ GM or the NYSE ~~Amex~~ MKT or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (m) The ~~Applicable Trading Market~~ Company shall have ~~approved~~ filed a Notification: Listing of Additional Shares with the ~~Shares for inclusion therein to~~ NASDAQ GM and shall have received no objection thereto from the ~~extent required, subject only to office notice of issuance~~NASDAQ GM. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers and directors of the Company listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing ~~Date and any Option Closing Date (if such date is other than the Closing~~ Date), the Company shall have furnished to the ~~Underwriters~~ Representative such further information, good standing of the Company, opinions~~, comfort letter~~, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. (p) The several obligations of the Underwriters to purchase Additional Shares, if any, hereunder are subject to the delivery to the Representative on the applicable Option Closing Date of such documents as it may reasonably request with respect to the good standing of the Company, opinions, comfort letters, certificates, letters, documents, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date, and other matters related to the issuance of such Additional Shares. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Cytori Therapeutics, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The ~~respective~~ obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representative shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the~~ Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx~~ Xxxxx Xxxxx Xxxx Xxxxxx ~~Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ Glovksy & Popeo P.C. shall have furnished to the Representative ~~(i)~~ such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in form and substance reasonably satisfactory to the ~~form attached hereto as Exhibit B-1 and~~ Representative. (iie) a Xxxxx & Xxxxxxx LLP, the Company’s Intellectual Property counsel shall have furnished to the Representative, such counsel’s written ~~statement providing certain “10b-5” negative assurances~~opinion, with respect to intellectual property matters, addressed to the Underwriters ~~and~~ dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in ~~the~~ form ~~attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel~~ and substance reasonably satisfactory to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3Representative. (f) The ~~Representative~~ Underwriters shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Proskauer Rose LLP, ~~U.S.~~ counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (g1) At the time of the execution of this Agreement, the Representative shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer~~KPMG LLP a letter, ~~a member~~ addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (A) confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries for the periods included in the years ending 2006 and 2007 within the meaning of the Securities Act and the Rules and Regulations and PCAOB and (B) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (2) At the time of the execution of this Agreement, the Representative shall have received from Ernst & Young ~~Global,~~ LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of~~ Ernst & Young ~~Global,~~ LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Underwriter concurrently with the execution of this Agreement pursuant to paragraph (hg) of this Section 6. (i) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, at the Applicable Time and as of the ~~applicable effective date,~~ date of this Agreement and as of the Closing Date and any Option Closing Date (if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable ~~Time~~Time and as of the Closing Date and any Option Closing Date (if such date is other than the Closing Date), any Permitted Free Writing Prospectus as of its date and as of the Closing ~~Date (or any Option Closing Date if such date is other than the Closing~~ Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (iii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied in all material respects with all agreements and satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary~~and its subsidiaries, taken as a whole, or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (j) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than the issuance of Common Stock pursuant to the exercise of stock options under the Company’s stock plans, and the issuance of options and restricted Common Stock under the Company’s stock plans) or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness)~~its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary~~its subsidiaries, taken as a whole, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ij), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (k) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries, taken as a whole; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries, taken as a whole. (l) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ NASDAQ GM or the ~~NYSE Amex~~ American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (m) The ~~Applicable Trading Market~~ Company shall have ~~approved~~ filed a Notification: Listing of Additional Shares with the ~~Shares for inclusion therein to~~ NASDAQ GM and shall have received no objection thereto from the ~~extent required, subject only to office notice of issuance~~NASDAQ GM. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers and directors of the Company listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the ~~Underwriters~~ Representative such further information, opinions~~, comfort letter~~, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably ~~requested~~requested with respect to the good standing of the Company, opinions, comfort letters, certificates, letters, documents, the due authorization and issuance of the Firm Shares and the Additional Shares, if any, to be sold on such Closing Date and Option Closing Date, if any, and other matters related to the issuance of such Shares. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Synta Pharmaceuticals Corp)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representative shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the ~~Ordinary Shares~~Warrants, the ~~Representative’s Option Agreement, the Representative’s Securities~~Warrant Stock, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx~~ Rxxxxxxx & Cxxx ~~Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company,~~ LLP shall have furnished to the Representative ~~(i)~~ such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in ~~the~~ form ~~attached hereto as Exhibit B-1~~ and ~~(ii) a written statement providing certain “10b-5” negative assurances, addressed~~ substance reasonably satisfactory to the ~~Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2~~Representative. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the The Underwriters ~~and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative~~ shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester~~ Proskauer Rose LLP, ~~U.S.~~ counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (gf) At the time of the execution of this Agreement, the Representative shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hg) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representative concurrently with the execution of this Agreement pursuant to paragraph (hg) of this Section 6. (ih) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, at the Applicable Time and as of the ~~applicable effective date,~~ date of this Agreement and as of the Closing Date and any Option Closing Date (if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable ~~Time~~Time and as of the Closing Date and any Option Closing Date (if such date is other than the Closing Date), any Permitted Free Writing Prospectus as of its date and as of the Closing ~~Date (or any Option Closing Date if such date is other than the Closing~~ Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (iii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (ji) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the conversion of convertible indebtedness) or short-term or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness)~~its subsidiaries, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its subsidiaries otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (i), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (kj) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries. (lk) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ NASDAQ GM or the ~~NYSE Amex~~ American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United ~~States~~ States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (l) The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ GM covering the Shares and Warrant Stock and shall have received no objection thereto from the NASDAQ GM. (m) The ~~Applicable Trading Market~~ Underwriters shall have ~~approved~~ not have received any unresolved objection from the ~~Shares for inclusion therein~~ FINRA as to the ~~extent required, subject only~~ fairness and reasonableness of the amount of compensation allowable or payable to ~~office notice~~ the Underwriters in connection with the issuance and sale of ~~issuance~~the Shares. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ executive officers and directors of the Company listed in Schedule B to this Agreement. (o) ~~At Closing, the Company~~ The Representative shall have ~~delivered~~ received the ~~executed Representative’s Option Agreement~~ written waiver from POSCO Power (“POSCO”) relating to its notice and participation rights arising under and pursuant to the ~~Representative in~~ terms of that certain Securities Purchase Agreement, dated April 30, 2012 between POSCO and the ~~form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request~~Company. (p) The ~~Underwriters~~ Representative shall have received ~~clearance from FINRA as~~ the Firm Warrants and any Additional Warrants, substantially in the form of Exhibit B, at least one (1) full business day prior to the ~~amount of compensation allowable or payable~~ Closing Date and any Option Closing Date (if such date is other than the Closing Date), provided that the Representative elects to have the Underwriters ~~as described in~~ take delivery of definitive certificates for the ~~Pricing Prospectus~~Firm Warrants and any Additional Warrants instead of delivery through the facilities of DTC pursuant to Sections 2.2 and 2.3 of this Agreement. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (sq) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the ~~Underwriters~~ Representative such further information, opinions~~, comfort letter~~, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Fuelcell Energy Inc)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the ~~Representative~~Representatives; ~~the Rule 462(b) Registration Statement, if any,~~ each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 of the Securities Act) with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a)~~, and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission~~; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters~~ Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the reasonable opinion of counsel for the Underwriters, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the reasonable opinion of such counsel, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) The Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (cd) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares~~, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities~~, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s Option Agreement and the~~ transactions contemplated hereby ~~and thereby~~ shall be reasonably satisfactory ~~in all material respects~~ to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (de) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx~~ Ropes and ~~Pxxxx PC, U.S. counsel to the Company,~~ Xxxx LLP shall have furnished to the ~~Representative (i)~~ Representatives such counsel’s written ~~opinion~~opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing ~~Date~~ Date, and any Option Closing Date (if such date is other than the Closing Date), in ~~the~~ form ~~attached hereto as Exhibit B-1~~ and ~~(ii) a written statement providing certain “10b-5” negative assurances, addressed~~ substance satisfactory to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3Representatives. (f) The ~~Representative~~ Underwriters shall have received from ~~Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx~~ Xxxxxx & ~~Worcester~~ Xxxxxxx LLP, ~~U.S.~~ counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~addressed to the Underwriters,~~ with respect to such matters as the ~~Representative~~ Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request ~~to enable~~ for enabling them to pass upon such matters. (g) At the time of the execution of this Agreement, the ~~Representative~~ Representatives shall have received from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the ~~Representative~~ Representatives (iA) confirming that they are an independent registered ~~public~~ accounting firm with respect to the Company and ~~any Subsidiary~~ its subsidiaries within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (iiB) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the ~~effective date of any post-effective amendment to any Registration Statement and on the~~ Closing Date and any Option Closing Date (if such date is other than the Closing Date), the ~~Representative~~ Representatives shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global,~~ KPMG LLP addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Representatives concurrently with the execution of this Agreement pursuant to paragraph (hd) of this Section 6. (i) The Company shall have furnished to the ~~Representative~~ Representatives a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, Chief Executive Officer or its President and its Chief Financial Officer or a Vice President ~~and its Vice President~~of Finance, ~~Finance~~ each in his or her capacity as an officer of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure ~~Package, any Permitted Free Writing Prospectus~~ Package and the Prospectus and, in their opinion, the ~~Registration Statement~~ representations set forth in Section 3(b) and ~~each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact~~ 3(d) hereof are true and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time, any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleadingcorrect, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus that has not been so set forth therein, (iii) to the best of their ~~knowledge~~knowledge after reasonable investigation, as of the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, and the Company has complied in all material respects with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date ~~(or~~ and any Option Closing Date (if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary,~~ and its subsidiaries or any change or development that, ~~singularly~~ singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company ~~or any Subsidiary~~and its subsidiaries taken as a whole, except as set forth in the Prospectus. (j) On the date of this Agreement on the Closing Date and on any Option Closing Date, the Representatives shall have received a written certificate executed by the Chief Financial Officer of the Company, in substantially the form annexed hereto as Exhibit B. (k) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor ~~dispute or court or governmental action, order or decree~~dispute, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any material change in the capital stock or short-term or long-term debt of the Company ~~nor~~ or any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course~~ of ~~business and repayments of existing indebtedness)~~its subsidiaries, or any ~~change, or any development involving a prospective change,~~ material adverse change in or affecting the business, general affairs, management, financial position, ~~stockholders~~prospects, shareholders’ equity or results of operations of the Company and ~~any Subsidiary,~~ its subsidiaries otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ij), is, in the judgment of the ~~Representative~~Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares ~~and the Representative’s Option~~ on the terms and in the manner contemplated in the General Disclosure Package. (kl) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary;~~ its subsidiaries and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or~~ materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or ~~any Subsidiary~~its subsidiaries. (lm) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (ii)(A) trading in securities generally on the New York Stock Exchange, ~~Applicable Trading Market~~ NASDAQ GSM or the ~~NYSE Amex~~ American Stock Exchange or in the over-the-counter market, or (B) trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the ~~Representative~~Representatives, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (mn) The ~~Applicable Trading Market~~ Company shall have ~~approved~~ filed a Notification: Listing of Additional Shares with the ~~Shares for inclusion therein to~~ NASDAQ GSM and shall have received no objection thereto from the ~~extent required, subject only to office notice of issuance~~NASDAQ GSM. (no) The ~~Representative~~ Representatives shall have received the written agreements, substantially in the form of Exhibit A hereto, of the ~~persons~~ parties listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (p) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus. (r) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (s) Prior to the Closing ~~Date and any Option Closing Date (if such date is other than the Closing~~ Date), the Company shall have furnished to the ~~Underwriters~~ Representatives such ~~further information~~good standing certificates, ~~opinions~~secretary and officers’ certificates, ~~comfort letter, certificates (including a Secretary’s Certificate), letters~~ or such other documents as the ~~Representative~~ Representatives shall have reasonably requested. The several obligations of the Underwriters to purchase Additional Shares, if any, hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of such documents as it may reasonably request with respect to the good standing of the Company, opinions, comfort letters, certificates, letters, documents, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date, and other matters related to the issuance of such Additional Shares. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

Appears in 1 contract

Samples: Equity Underwriting Agreement (Sarepta Therapeutics, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The respective obligations of the ~~Underwriters~~ Underwriter hereunder, and the closing of the sale of the Firm ~~Shares~~ Securities and any ~~Additional Shares~~Option Securities, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company ~~in all material respects~~ of its obligations hereunder, and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any ~~Base~~ Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge,~~ or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the ~~Representative~~Underwriter; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the ~~Underwriters~~Underwriter, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, ~~in the opinion of such counsel,~~ is material or omits to state any fact which~~, in the opinion of such counsel~~, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the ~~Shares~~Public Securities, the ~~Ordinary Shares~~Common Stock, the ~~Representative’s Option Agreement~~Underwriter's Purchase Option, the ~~Representative’s~~ Underwriter's Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the ~~Representative’s~~ Underwriter's Purchase Option ~~Agreement~~ and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the ~~Underwriters~~Underwriter, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ~~Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC~~Xxxxxxxxx Xxxxxxx, ~~U.S. counsel to the Company,~~ LLP shall have furnished to the ~~Representative (i)~~ Underwriter such counsel’s 's written opinion, as counsel to the Company, addressed to the ~~Underwriters~~ Underwriter and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit ~~B-1 and (ii)~~ X. Xxxxxxxxx Traurig, LLP shall also have furnished to the Underwriter a written statement providing certain “10b-5” negative assurances, addressed to the ~~Underwriters~~ Underwriter and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit ~~B-2.~~C. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative shall have received from Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters. (g) At the time of the execution of this Agreement, the ~~Representative~~ Underwriter shall have received from ~~Kxxx Fxxxx Gxxxxx~~ Cross, Xxxxxxxxx & ~~Kasierer~~Xxxxx, ~~a member of Ernst & Young Global~~LLP, a letter, addressed to the ~~Underwriters~~Underwriter, executed and dated such date, in form and substance satisfactory to the ~~Representative~~ Underwriter (i) confirming that they are an independent registered public accounting firm with respect to the Company and any Subsidiary within the meaning of the Securities Act and the ~~rules~~ Rules and ~~regulations of the~~ Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants~~’ “~~' comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (hf) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the ~~Representative~~ Underwriter shall have received a letter (the “Bring-Down Letter”) from ~~Kxxx Fxxxx Gxxxxx~~ Cross, Xxxxxxxxx & ~~Kasierer~~Xxxxx, ~~a member of Ernst & Young Global,~~ LLP addressed to the ~~Underwriters~~ Underwriter and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ ' “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the ~~Underwriters~~ Underwriter concurrently with the execution of this Agreement pursuant to paragraph (hi) of this Section 6. (ig) The Company shall have furnished to the ~~Representative~~ Underwriter a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, its President or a Vice President and its Vice President, Finance solely in their capacities as officers of the Company, stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the ~~applicable effective date,~~ Applicable Time and as of the date of this Agreement and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable ~~Time~~Time and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing ~~Date (or any Option Closing Date if such date is other than the Closing~~ Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the Prospectus, (iii) to the best of their knowledge, as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and correct and the Company has complied ~~in all material respects~~ with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date (or any Option Closing Date if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company or any Subsidiary, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company or any Subsidiary, except as set forth in the Prospectus. (jh) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any Subsidiary 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 in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or long-term debt of the Company nor any ~~Subsidiary (other than stock option and warrant exercises in the ordinary course of business and repayments of existing indebtedness)~~Subsidiary, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ ' equity or results of operations of the Company and any Subsidiary, otherwise than as set forth in the Registration Statement, the Prospectus or the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (ik), is, in the judgment of the ~~Representative~~Underwriter, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the ~~Shares~~ Public Securities and the ~~Representative’s~~ Underwriter's Purchase Option on the terms and in the manner contemplated in the General Disclosure Package. (ki) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the ~~Shares~~ Public Securities or the ~~Representative’s~~ Underwriter's Securities or ~~materially and adversely affect or potentially~~ materially and adversely affect the business or operations of the Company or any Subsidiary; taken as a whole, and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the ~~Shares~~ Public Securities or the ~~Representative’s~~ Underwriter's Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary. (lj) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, Applicable Trading Market or the NYSE ~~Amex~~ MKT or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the ~~Representative~~Underwriter, impracticable or inadvisable to proceed with the sale or delivery of the ~~Shares~~ Public Securities on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (mk) The Applicable Trading Market shall have approved the ~~Shares~~ Public Securities for inclusion therein to the extent required, subject only to ~~office~~ official notice of issuance. (nl) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons listed in Schedule B to this Agreement. (om) At Closing, the Company shall have delivered the executed ~~Representative’s~~ the Underwriter's Purchase Option Agreement to the ~~Representative~~ Underwriter in the form of Exhibit C A hereto, which shall be issued in the name or names and in such authorized denominations as the ~~Representative~~ Underwriter may request. (pn) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the ~~Underwriters~~ Underwriter as described in the Pricing Prospectus. (ro) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the transactions contemplated hereby, including as an exhibit thereto this Agreement and any other documents relating thereto. (p) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act). (sq) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the ~~Underwriters~~ Underwriter such further information, opinions, comfort letter, certificates (including a Secretary’s 's Certificate), letters or such other documents as the ~~Representative~~ Underwriter shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the ~~Underwriters~~Underwriter.

Appears in 1 contract

Samples: Underwriting Agreement (IZEA, Inc.)

CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The ~~respective~~ obligations of the Underwriters hereunder, and the closing of the sale of the ~~Firm Shares and any Additional~~ Shares, are subject to the accuracy, when made and as of the Applicable Time and on at the ~~Closing Date and any Option Closing Date~~Time of Purchase or the Additional Time of Purchase, as the case may be, of the representations and warranties of the Company contained ~~herein~~herein (except for inaccuracies that would not reasonably be expected to result in a Material Adverse Effect), to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Company, in all material ~~respects~~ respects, of its obligations ~~hereunder~~hereunder (or waiver by the underwriters), and to each of the following additional terms and conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, ~~any Preliminary Prospectus,~~ the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated ~~or, to the Company’s knowledge, threatened~~ by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied ~~with to the reasonable satisfaction of the Representative~~with; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the ~~Securities Act~~ Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (b) The ~~Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the~~ Registration Statement or any amendment or supplement thereto ~~contains~~ shall not contain an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Shares, the Ordinary Shares, the Representative’s Option Agreement, the Representative’s Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the Representative’s Option Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) Mxxxx Lxxxx Cxxx Xxxxxx Gxxxxxx and Pxxxx PC, U.S. counsel to the Company, shall have furnished to the Representative (i) such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-1 and (ii) a written statement providing certain “10b-5” negative assurances, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-2. (e) Raved Magriso Benkel & Co., Israeli counsel to the Company, shall have furnished to the Representative such counsel’s written opinion, including a written statement providing certain “10b-5” negative assurances, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in the form attached hereto as Exhibit B-3. (f) The Representative shall have received from Zxxxxx Axxxxxx Gxxxx and Sxxxxxxx & Worcester LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), addressed to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters. (g) At the time of the execution of this Agreement, the Representative shall have received from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, a letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming that they are an independent registered public accounting firm with respect to the Company and any Subsidiary within the meaning of the Securities Act and the rules and regulations of the PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (h) On the effective date of any post-effective amendment to any Registration Statement and on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Representative shall have received a letter (the “Bring-Down Letter”) from Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriters concurrently with the execution of this Agreement pursuant to paragraph (h) of this Section 6. (i) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chairman of the Board, its President or a Vice President and its Vice President, Finance stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the applicable effective date, did not include any untrue statement of a material fact ~~and did not~~ or omit to state a material fact required to be stated therein or necessary to make the statements ~~therein~~ therein, not misleading, and none of the General Disclosure Package, ~~as of the Applicable Time,~~ any ~~Permitted~~ Issuer Free Writing Prospectus ~~as of its date and as of~~ or the ~~Closing Date (~~Prospectus, or any ~~Option Closing Date if such date is other than the Closing Date), the Prospectus and each~~ amendment or supplement thereto, ~~as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any~~ shall contain an untrue statement of a material fact ~~and did not~~ or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading. (c) The Company shall have furnished to the Representative a certificate, dated the Closing Date or the Additional Closing Date, as the case may be, of its Chief Executive Officer and its Chief Financial Officer stating that (iii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the ~~Prospectus~~Prospectus which has not so been disclosed, (~~iii~~ii) to ~~the best of~~ their knowledge, as of ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, the representations and warranties of the Company in this Agreement are true and ~~correct~~ correct, except for inaccuracies that would not reasonably be expected to result in a Material Adverse Effect, and the Company has ~~complied~~ complied, in all material ~~respects~~ respects, with all agreements and satisfied ~~in all material respects~~ all conditions on its part to be performed or satisfied hereunder at or prior to ~~the Closing Date (or any Option Closing Date if~~ such ~~date is other than the Closing Date)~~date, and (iviii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, or any change or development that, ~~singularly~~ individually or in the aggregate, would reasonably be expected to involve a material adverse change ~~or a prospective material adverse change,~~ in or affecting the condition (financial or otherwise), results of operations, ~~business,~~ business or assets ~~or prospects~~ of the Company ~~or any Subsidiary~~and its Subsidiaries, taken as a whole, except as set forth in the Prospectus. (jd) Since the date of the latest audited financial statements with respect to the Company and its Subsidiaries included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any ~~Subsidiary~~ of its Subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock of the Company or any change in the long-term debt of the Company ~~nor any Subsidiary (other than stock option~~ and ~~warrant exercises in the ordinary course of business and repayments of existing indebtedness)~~its Subsidiaries, taken as a whole, or any ~~change,~~ change or any development ~~involving a prospective change,~~ in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and ~~any Subsidiary~~its Subsidiaries, taken as a whole, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this ~~paragraph (i~~Section 6(e), ~~is,~~ would result in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares and the Representative’s Option on the terms and in the manner contemplated in the General Disclosure Packagea Material Adverse Effect. (ke) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body having jurisdiction over the Company which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~reasonably be expected to result in a Material Adverse Effect; and no injunction, restraining order or order of any other nature by any United States federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or ~~the Representative’s Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary~~reasonably be expected to result in a Material Adverse Effect. (lf) Subsequent to the execution and delivery of this ~~Agreement,~~ Agreement there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the ~~New York Stock Exchange, Applicable Trading Market~~ NYSE or the ~~NYSE Amex~~ Nasdaq Stock Market or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, ; (ii) a banking moratorium ~~shall have been~~ declared by ~~Federal~~ United States federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, ; (iii) the ~~United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an~~ outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of ~~a national emergency or~~ war by the United ~~States or~~ States; (iv) if there has been, in the judgment of the Representative, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the results of operations, assets, or business of the Company and its Subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business; (v) there shall have occurred ~~such~~ a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such), if the effect of any such event specified in clause (iii), or (vi) ~~as to~~ make it, in the reasonable judgment of the ~~Representative~~Underwriter, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus. (m) The Applicable Trading Market shall have approved the Shares for inclusion therein to the extent required, subject only to office notice of issuance. (n) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons listed in Schedule B to this Agreement. (o) At Closing, the Company shall have delivered the executed Representative’s Option Agreement to the Representative in the form of Exhibit C hereto, which shall be issued in the name or names and in such authorized denominations as the Representative may request. (pg) The Underwriters shall have received ~~clearance from FINRA~~ an opinion and negative assurance letter of Gxxxxxxxx Dxxxxxx Xxxxxx Vxxxxxxxxx Xxxxxxxx & Hxxxxxxxx, LLP, counsel for the Company, dated the Closing Date or the Additional Closing Date, as to the ~~amount of compensation allowable or payable to~~ case may be, covering such matters as the Underwriters ~~as described in the Pricing Prospectus~~shall reasonably request. (rh) The ~~Prospectus~~ Underwriters shall have ~~been filed with~~ received the ~~Commission pursuant to Rule 424(b) under~~ favorable opinion of Fxxxx & Lardner LLP, counsel for the ~~Act at~~ Underwriters, dated the Closing Date or ~~before 5:30 p.m.~~the Additional Closing Date, ~~Eastern time~~as the case may be, on and covering such matters as the ~~second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act)~~Underwriters shall reasonably request. (si) ~~Prior to~~ The Underwriters shall have received from Ernst & Young LLP letters dated, respectively, the date hereof, the Closing Date and, if applicable, the Additional Closing Date, in form and ~~any Option Closing Date~~ substance satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the General Disclosure Package, the Prospectus and the Registration Statement. (~~if such~~ j) [Reserved] (k) The “lock-up” agreements, each substantially in the form of Schedule D hereto, between the Representative and certain stockholders, officers and directors of the Company listed on Schedule E-1 hereto, relating to restrictions on sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representative on or before the date ~~is other than~~ hereof, shall be in full force and effect on the Closing Date~~), the~~ . (l) The Company shall have furnished to the ~~Underwriters~~ Representative such further ~~information, opinions, comfort letter,~~ certificates ~~(including a Secretary’s Certificate), letters or such other~~ and documents as the Representative ~~shall have~~ may reasonably ~~requested~~require for the purpose of enabling the Underwriters to pass upon the issuance and sale of the Shares as herein contemplated. (m) The Company has paid the Representative a structuring fee of $1,500,000 on the Closing Date. ~~All opinions, letters, evidence and certificates mentioned above or elsewhere~~ If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated in the absolute discretion of the Representative by notice to the Company at any time on or prior to the Closing Date and, with respect to the Option Shares, at any time on or prior to the applicable Additional Closing Date, which termination shall be ~~deemed~~ without liability on the part of any party to any other party (except to the extent provided in Section 8 hereof), except that Sections 5, 6, 8 and 9 shall at all times be ~~in compliance with the provisions hereof only if they are in form~~ effective and ~~substance reasonably satisfactory to counsel for the Underwriters~~shall survive such termination.

Appears in 1 contract

Samples: Underwriting Agreement (Synchronoss Technologies Inc)

Common use of CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES Clause in Contracts